Lords Sitting of 4 December 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bradford.

Lord Waddington
The Right Honourable David Charles Waddington, QC, having been created Baron Waddington, of Read in the County of Lancashire, for life—Was, in his robes, introduced between the Lord Denham and the Lord Carlisle of Bucklow.

School Governors' Workload
2.48 p.m.
Baroness David Baroness David asked Her Majesty's Government:
What is their current estimate of the increased workload on school governors as a result of the Education Reform Act 1988.
Lord Cavendish of Furness: My Lords, a recent National Foundation for Educational Research survey found that the average amount of time spent by governors on their duties was 10 hours a term rising to 20 hours for heads and 30 for chairmen. Comparable figures are not available, but before the Education Reform Act the responsibilities were neither as demanding nor as rewarding as governors now feel them to be.
Baroness David: My Lords, I thank the Minister for that reply. Compared with the amount of time that I spend on a governing body, I am rather surprised that those duties take so little time.
Are the Government anxious about the reported increase in membership turnover between 1988 and 1990? Are the Government content that 4 per cent. of posts were vacant at the time of the National Foundation for Educational Research survey and that representation of governing bodies is well enough spread throughout the community?
Lord Cavendish of Furness: My Lords, the NFER survey to which I referred shows that in the three terms to spring 1990 10 per cent. of the posts were vacant but that 15 per cent. of members had been appointed within the year, suggesting that the turnover is falling as governing bodies settle down in their new jobs.
With regard to the second question, we are disappointed that the spread is not as it should be, and that so few blue-collar workers and people from ethnic minorities are members of governing bodies. We hope to target those groups in the future.
Baroness Fisher of Rednal: My Lords, will the Minister tell us how he will target the difficult areas? Is the Minister aware that it is more difficult in some schools in the central areas of our great cities—London, Birmingham and Manchester—to appoint
94
school governors? Is he satisfied that enough business people are coming forward in recognition of the difficult task in those schools?
Lord Cavendish of Furness: My Lords, I appreciate the difficulty. The figure has not been calculated. I believe that in 1989 there was a campaign to appoint additional governors from a wider spread. However, we have no firm plans on how to achieve that.
The noble Baroness asked about composition. Most chairmen were agreed that the balance of people, skills and interests on their governing bodies were satisfactory. Compared with the population at large the governors surveyed were well qualified. Fifty-seven per cent. of chairmen and 44 per cent. of other governors held degrees or professional qualifications. One in five was employed in industry and commerce. The figures for chairmen were 14 per cent. and 21 per cent. respectively.
Lord Beloff: My Lords, has the Minister read the latest account of Labour Party education policy? The Labour Party intends to restore the stranglehold of local education authorities upon the schools. If we had the misfortune to have a Labour Government, is it not possible that people would not wish to be governors?
Lord Cavendish of Furness: My Lords, I thank the noble Lord for his supplementary question. I suffered some years ago when we became familiar with what was known as the little red book.
Lord Glenamara: My Lords, the Minister refers to new jobs. School governors and school managers have existed for the past 50 years. Time did not start with the passing of the Education Reform Act. Those people were in place generations before that and doing a good job.
Lord Cavendish of Furness: My Lords, it is a new role for governors, not a new job.
Lord Glenamara: My Lords, will the Minister tell us what the new role is?
Lord Cavendish of Furness: My Lords, it is specified in great detail in the Act. Perhaps I may say—with a slight insight, having been a governor of four schools over 20 years—that before the reforms the job was undemanding and dull; after the reforms it is extremely stimulating.
Baroness Blackstone: My Lords, I must correct what the noble Lord said about the job of a school governor.
Noble Lords: Order!
Baroness Blackstone: My Lords, perhaps I may correct what the noble Lord has just said. Having been a school governor for many years in a variety of schools, I never found the job boring or undemanding. Is the Minister aware that there is the most serious shortage and the biggest turnover of school governors in inner city schools? Can he tell the House what the Government intend to do about the shortages in those schools where the need for highly-qualified governors is greatest?
Lord Cavendish of Furness: My Lords, I know that the noble Baroness has great experience in these

95
matters. Now that the results of the Education Reform Act are settling down we believe that the problem will be self-correcting.

County Hall, London
2.55 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham asked Her Majesty's Government:
Whether, in view of the failure of the London Residuary Body to find a viable use for the County Hall, London, they will now take steps to restore the building to London government use.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, the Government do not accept that the London Residuary Body has failed to find viable new uses for County Hall. My right honourable friend the Secretary of State for the Environment is currently considering planning proposals for the County Hall buildings to be used as a hotel, a conference centre, as offices and for apartments and shops.
Baroness Hollis of Heigham: My Lords, does the Minister agree with the Government's planning circular No. 887, which states that the best use for a historic building is the use for which it was designed?
Baroness Blatch: My Lords, I agree that historic buildings should be used, which is also stated in the PPG.
Lord Hailsham of Saint Marylebone: My Lords, will my noble friend consult our mutual noble and learned friend on the Woolsack as to whether there is not a grave shortage of court space in central London?
Baroness Blatch: My Lords, a planning application is now receiving consideration but I am sure that the building could be put to many uses.
Lord Mellish: My Lords, is the Minister aware that some of us have no interest in what finally happens at County Hall? However, can she tell us what the Goverment intend to do about the carbuncle, the monstrosity that is part of the GLC County Hall building? It is at the foot of Westminster Bridge and blocks the view of the entire river and the Palace of Westminster because some idiot put it up. What do the Government intend to do about it?
Baroness Blatch: My Lords, this is not the time for me to go into detail about the planning application. The noble Lord may know that when the inspector considered the original plans at the inquiry he was not unhappy about them in every detail, and the plans now submitted are much more acceptable, and the aspect will be much improved.
Lord Mancroft: My Lords, can the Minister assure the House that whatever happens County Hall will never again become the symbol of socialist incompetence that it became under Labour Party rule?
Baroness Blatch: My Lords, at an early age I was taught never to say, "Never again", and certainly not
96
in politics. No one on this side of the House wishes to see a resurrection of the kind of government that we had when the GLC existed.
Lord Jenkins of Putney: My Lords, does not the Minister agree that the Government to whom she belongs were gravely mistaken in abolishing the GLC, which was a medium of democratic government in London? Are not the Government ashamed of that action, which resulted in rendering the building unavailable for the purpose for which it was designed and to which it should be returned?
Baroness Blatch: My Lords, I profoundly disagree with the assumption made by the noble Lord. The GLC was an expensive and unhelpful overhead for London government.
Lord Swinfen: My Lords, will the Minister consider using the proposed office space in County Hall for Members of both Houses of Parliament, for whom there is a considerable shortage of space? It might be possible to connect the Palace of Westminster and County Hall by means of a travelator underneath the Thames.
Baroness Blatch: My Lords, I am sure that there is no shortage of ideas on the use to which County Hall should be put. Consideration is at present being given to putting it into the private sector for the use that I described in my Answer.
Viscount Hanworth: My Lords, does the Minister agree that with proportional representation there would have been no real reason for abolishing the GLC?
Baroness Blatch: My Lords, there were good reasons for abolishing the GLC. As regards proportional representation, at this time the answer is no.
Lord Molloy: My Lords, is the Minister aware that, as everyone knows, the reason for abolishing the GLC was that London people had the audacity to vote Labour, which in some Tory eyes is offensive? Is he further aware that Conservative and Labour councils, together with those of us with experience in London local government, now believe that if the GLC is not to be recreated an organisation of London boroughs must be formed, irrespective of the party in power? Such an organisation should have somewhere to meet to discuss the important and vital questions that affect the entire metropolis.
Baroness Blatch: My Lords, the reason for the abolition was not to do with how people voted in London but with the fact that it was an expensive and unhelpful tier of local government. Thirty-three London boroughs are doing a wonderful job in replacing the functions of the GLC, as are the London Planning Advisory Committee and SERPLAN. A strategic body and 33 London boroughs are doing a splendid job.
Lord John-Mackie: My Lords, can the noble Baroness tell the House what is to happen to the area below County Hall? I understand that some would-be developers are asking for conditions which would spoil that public park.
Baroness Blatch: My Lords, I must refer the noble Lord to the planning application, which will be on public deposit.
Lord Plummer of St. Marylebone: My Lords, will my noble friend consider differentiating between the various regimes at County Hall, some of which were neither unhelpful nor expensive?
Baroness Blatch: My Lords, those aspects which were not unhelpful are catered for under the new arrangements. Those which were unhelpful have ceased to exist.
The Viscount of Falkland: My Lords, is it not the case that the London Residuary Body turned down an application by an American film company to film some scenes from an 80 million dollar production called "Shining Through" starring Michael Douglas? Is not that rather an attractive use for County Hall? Why was that application turned down?
Baroness Blatch: My Lords, I am not aware of the details of a specific application being turned down. However, there are security problems at County Hall and it may well be that security arrangements invalidated any cost benefit that would have arisen by allowing the film company into County Hall.
Lord Dean of Beswick: My Lords, is not the noble Baroness aware that the former GLC building has been the responsibility of the London Residuary Body for four years but it has been put to no use whatever? The result is that the former ratepayers, now poll tax payers, of the former GLC area have lost a great deal of money. Is it not fair and right that the public auditor should now be considering surcharging the chairman of the London Residuary Body and its members, in the same way that local councils and government officers would have been surcharged had they carried out such an exercise?
Baroness Blatch: My Lords, I do not accept what the noble Lord says. The London Residuary Body is realising considerable assets, all of which will benefit the London boroughs and the people of London.
Baroness Hollis of Heigham: My Lords, given the circular which I have quoted, the two planning inquiries at which the inspector said that the building should be held in public use, the collapse of the private sector alternative and the reforms of local government currently being considered by the Minister, does not the noble Baroness agree that the planning inquiry should be reopened? Is she aware that the learned counsel of Lambeth has suggested that if that is not done, the Secretary of State risks judicial review?
Baroness Blatch: My Lords, the final point is very much a matter for Lambeth council. The three points of criticism in the first inquiry, which is now subject to resubmission of an application, have been addressed by the applicants and that application now sits before the Secretary of State. At present he is considering whether or not the inquiry shall be reopened. This is a period of consultation during which the noble Baroness will have every opportunity to feed to the Secretary of State her particular views. However, I do not agree with many of the statements made by the noble Baroness.
The Minister of State, Home Office (Earl Ferrers): My Lords, I fear that this is a subject which we could continue to discuss for quite a long time. We have spent 15 minutes discussing two Questions and I believe that it is the feeling of the House that we should now move on to the next Question.

Long-stay Hospital Patients
3.3 p.m.
Lord Mottistone Lord Mottistone asked Her Majesty's Government:
How they define a long-stay psychiatric patient.
Lord Cavendish of Furness: My Lords, there is no universal agreement on the definition of a long-stay patient, but government statistics on hospital activity use a stay of one year or more.
Lord Mottistone: My Lords, do I understand from my noble friend that a long stay is one year or more? I did not quite hear what he said.
Lord Cavendish of Furness: My Lords, yes, that is the case.
Lord Mottistone: My Lords, I thank my noble friend for that definition which has been long awaited. He will be aware, I am sure, that many statistics have been quoted in the past about long-stay hospitals and patients, but never before have we been given a factual definition of one year or more. I thank him.
Lord Cavendish of Furness: My Lords, I am grateful to my noble friend; I am glad to have been of help.
Lord Ennals: My Lords, will the noble Lord accept that whatever the definition, the vast majority of long-stay patients discharged into the community greatly prefer to live in the community? Will he and his Government take more action to ensure that the present deplorable state of community care provision in local authorities is greatly improved?
Lord Cavendish of Furness: My Lords, I am glad that we agree on the basic principle. We feel that we are doing as much as possible through the mental illness specific grant.
Lord Mottistone: My Lords, notwithstanding what the noble Lord, Lord Ennals, said, is my noble friend aware that there is still a great need for some long-stay patients to be given continuous care in an asylum?
Lord Cavendish of Furness: My Lords, I must acknowledge the noble Lord's interest and experience in this matter. The word "asylum" is not one which we would accept, but there will continue to be a need for psychiatric wards.

Manufacturing Output
3.6 p.m.
Lord Hatch of Lusby Lord Hatch of Lusby asked Her Majesty's Government:
What were the figures for manufacturing output in each of the first three quarters of 1990.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde): My Lords, manufacturing output data at constant prices are

99
published in index form with the average for 1985 equal to 100. In the first three quarters of 1990 the index took the values 119.9, 121 and 118.9 respectively.
Lord Hatch of Lusby: My Lords, I regret that the noble Lord, Lord Hesketh, is not answering the Question. Is the Minister aware that on 14th November, on the same subject, the noble Lord, Lord Hesketh, said that,
"we now have an economy which, in the third quarter of 1990, has manufacturing output at a record level"?—[Official Report, 14/11/90; col. 327.]
Do not the figures given by the noble Lord contradict that assertion? When I challenged the noble Lord, Lord Hesketh, he promised to write to me if his figures were incorrect. I have received no such letter. Will the noble Lord now admit on behalf of the Government that the statement of his noble friend was incorrect?
Lord Strathclyde: My Lords, if the noble Lord had read further to col. 426, he would have found that my noble friend Lord Hesketh made an apology to the House.
Lord Brougham and Vaux: My Lords, can the noble Lord tell the House how our output growth compared with that of our European partners in the 1980s?
Lord Strathclyde: My Lords, I am glad to say that in the 1980s, the annual rate of growth was the second highest of our European partners.
Lord Denham: My Lords—
Lord Stoddart of Swindon: My Lords, the Chief Whip is sharp on his feet today! Has the noble Lord seen the figures issued today showing that company liquidity has fallen considerably? Does that not bode ill for the manufacturing investment that is so vital to our manufacturing component which must increase if we are to be successful? Will the noble Lord now agree that it was sheer stupidity, bearing in mind the decline in manufacturing output, to enter the ERM at the high level of 2.95?
Lord Strathclyde: My Lords, there has been a long term decline in the manufacturing share of output since the 1950s. Investment has increased by 11.3 per cent. since 1979. No, I do not believe we joined the ERM at the wrong time.
Lord Stoddart of Swindon: My Lords, the noble Lord suggests that I said we joined the ERM at the wrong time. As a matter of fact we should not have joined at all. What I said was that we joined it at the wrong level of 2.95.
Lord Strathclyde: My Lords, I do not believe that we joined at the wrong level either.
Lord Peston: My Lords, I shall certainly not engage in a debate on the ERM; I shall stick to manufacturing output. I am still attempting to discover what the Government's position is. Am I right that manufacturing output has been stagnant since the beginning of 1989? Without labouring the point excessively, under this Government for the first time in British history we have reached a deficit on manufacturing trade account in the balance of payments. Can the Minister say
100
whether the Government regard that as a satisfactory state of affairs? It sounded as though the Minister felt that the decline in British manufacturing industry was wholly acceptable. Or do the Government, like the rest of us, view the situation as alarming and a matter about which something should be done?
Lord Strathclyde: My Lords, manufacturing industry is now exporting more than in 1973. We had record manufacturing output during the 1980s; under the Labour Government it actually fell by 2.5 per cent. It is not a matter of whether or not we are satisfied with the current level. We are saying that that must be for the manufacturers and the consumers to decide.
Lord Peston: My Lords, the noble Lord must be explicit. The present position on overseas account—
Noble Lords: Question!
Lord Peston: I shall get to the question. I thought the noble Lord would like to understand the subject before I reach the question. I was trying to be helpful. It is unfair to the Minister to ask him a question when he does not know what we are talking about. Is he aware of the fact that we are in a very serious position both externally and internally? He simply needs to tell us whether the Government regard that as satisfactory. Is the present position a good one in the Government's view, or one about which the Government feel something should be done?
Lord Strathclyde: My Lords, I fully understand the subject about which the noble Lord speaks. The Government believe in managing the economy in such a way as to allow businesses to make up their own minds as to where they want to go.
Lord Hatch of Lusby: My Lords—
Lord Denham: My Lords, we have already spent six minutes on this Question. I carefully paused before rising. I miscalculated the first time, for which I apologise to your Lordships. It is now the time when the House would probably appreciate hearing the business statement.
Noble Lords: Order!
Lord Hatch of Lusby: My Lords, I simply point out that I was on my feet to ask a further supplementary question as soon as the noble Lord on the Front Bench answered my first question. I have been on my feet each time when there has been a pause. As I asked the original Question I ask the House to allow me to ask the final question.
Lord Denham: My Lords, I am sure that the House will allow the noble Lord to ask a final question. After it has been answered perhaps we can move on.
Lord Hatch of Lusby: My Lords, I am greatly obliged to the Chief Whip. May I ask the noble Lord, Lord Strathclyde, who has answered on behalf of the noble Lord, Lord Hesketh, whether the noble Lord, Lord Hesketh, made inquiries as to how he was briefed to make the statement that he did to the House. If it is the case that the Department of Trade and Industry is giving Ministers false information, that suggests that the whole of government policy is based on a set of false assumptions.
Lord Strathclyde: My Lords, that is a nice point to make; it does not happen to be the case. I refer the noble Lord once again to the words of my noble friend Lord Hesketh which are to be found at col. 426 on the fifth day of the debate on the Address.

Business
3.15 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that the Committee stage of the New Roads and Street Works Bill will be adjourned at around 7.30 p.m. for about one hour, and that during the adjournment the Second Reading of the Import and Export Control Bill and the Ministerial and Other Salaries Order 1990 will be taken.

Caravans (Standard Community Charge and Rating) Bill
Brought from the Commons; read a first time, and to be printed.

Business of the House
Earl Ferrers: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with for the purpose of taking the Import and Export Control Bill through its Second Reading and remaining stages this day.—(Earl Ferrers.)
On Question, Motion agreed to.

Gaming (Amendment) Bill [H.L.]
Lord Lyell: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Lyell.)
On Question, Motion agreed to.

New Roads and Street Works Bill [H.L.]
3.18 p.m.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Brabazon of Tara.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS SEROTA in the Chair.]
Clause 1 [Concession agreements]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 1:
Page 1, line 9, after ("authority") insert
("(after the publication by it of a statement under section (consideration of environmental effects) below)").
The noble Lord said: In moving Amendment No. 1, it will be for the convenience of the Committee if I speak also to Amendments Nos. 3 and 11. At the outset I thank the noble Lord, Lord Brabazon, for his customary courtesy in allowing us to see notes on clauses, which certainly helped us to understand what is a fairly complex Bill. I hope this may be taken as a precedent for other Bills in the future.
The purpose of the amendments to which I now speak is to ensure that the Committee, and indeed the Government, address environmental considerations regarding the proposals which the Government introduce in the Bill. The environmental considerations go to questions affecting significant road construction as well as local environmental implications. At the Second Reading the Minister addressed the latter. He scarcely referred to the former. That is a somewhat strange omission. It is a lacuna that needs to be cured at Committee stage.
Perhaps I may be specific on this point and refer the Committee to what the noble Lord said in this respect. He said:
"First, the rights of people affected to object will be the same with privately financed roads as with traditional ones. Secondly, the environmental appraisal will be the same; no less rigorous standards will be required of privately financed roads than of others".—[Official Report, 20/11/90; col. 626.]
In winding up, he went on to say,
"It will be possible for environmental issues to be considered at inquiries just as it is for public roads. A formal environmental impact assessment will be required. Nothing less than the high requirement for a public scheme will be accepted".—[col. 667.]
So far, so good, but I am afraid not good enough. Our concern is further to test what the Minister said on that occasion, and to ensure that environmental assessment is viewed in national and regional terms. Why do we say that? In the White Paper the Government acknowledge that 20 per cent. of total carbon dioxide emissions in the UK are attributable to the transport sector—mostly road transport. That contributes significantly to the greenhouse effect, while of course other gaseous emissions also contribute to the depletion of the ozone layer. The Government merely assert in the White Paper that they are committed to reversing the trend of carbon dioxide emissions and stabilising them at 1990 levels by 2005 if other countries take similar action. I am not going into a debate about that. I suggest that it is a proviso which is as unclear as it is unhelpful. The trouble is that traffic forecasts made by the Government suggest that future carbon dioxide emissions from the transport sector in this country are likely to be comparable to those in the energy sector. Consequently, we face a very serious problem.
We take the view, and no doubt the Government will contest it, that they are not prepared to do sufficient to address this matter. However, if the forecasts contemplated by the Government come to fruition we are considering a huge increase in car

103
usage of between 83 per cent. and 142 per cent. by the year 2025. Against that background we say it was the bounden duty of the Government, when they brought in Parts I and II of this Bill, to make a very full appraisal of the efficiency that they might be able to measure in relation to private road development and also to indicate very clearly to the Committee why they have come to the conclusion that this is environmentally beneficial when there seems to be overwhelming evidence that building more roads does not necessarily ease congestion and improve the environment. What tends to happen is that drivers simply move on to the new roads rather than use other modes of transport.
The White Paper asserts that the Government favour the continuing widening of car ownership as an important aspect of personal freedom of choice. Presumably the purposes of this Bill are designed to fit into that view. It is fair to say that the Government enter certain caveats about this which largely concern car driving being undertaken in a more economical fashion by making cars more fuel efficient, and so on. I do not believe that they begin to address the major problems. The Government have contented themselves with relying on virtually unbridled free market economics in an area where environmental matters cannot be determined solely by such considerations.
It follows that we contend that if not this Government then the next have to see to it that the overall national road programme must be designed to accommodate a strategy which is going to reduce noxious emissions. There is not a hint in the Bill about this overriding priority. At this stage of the Bill we need to examine the shortcomings in the Government's case, as stated at Second Reading, and the ways in which we might help to mitigate the situation, if not remedy it. That is the purpose of my amendment.
I now turn to environmental assessment. There was considerable ambiguity in what the Minister had to say. He said that it would be possible for environmental issues to be considered at inquiries just as happens for public roads. That is always possible. The trouble is that the environmental impact assessment directive, on which the 1988 regulations are based, was introduced to add a further dimension to that which applied to planning inquiries. The difficulty is that the 1988 regulations which reflected the directive enable the Secretary of State, in considering the construction of a new highway or improvement of an existing highway, to determine not that it should happen but whether there shall be an environmental assessment as a mandatory provision or whether it is unnecessary.
When I was a commissioner that was the first directive for which I had any responsibility, but only in a marginal sense because it had already been agreed by the time I took office. I know that in many respects the directive is unsatisfactory because it is so heavily qualified by a number of member states, including the United Kingdom, which wanted to widen the scope of the discretionary element and narrow the mandatory
104
element. That is very unsatisfactory but nonetheless that is the law. Under the law, environmental assessments are only required for motorways and express roads; for roads over 10 kilometres in length; roads affecting designated areas including sites of special scientific interest and conservation areas, but not for areas of outstanding natural beauty. Environmental assessment is also required for roads in certain urban situations.
Environmental assessment, therefore, is somewhat limited. It certainly does not include consideration of the wider consequences of proposed road or land use and it does not necessarily affect countryside protection policies. The one factor which is left in an ambiguous state as a result of what the Minister had to say is how he will exercise his discretion in these matters.
As I have already pointed out, the Minister said (in col. 667 of the Official Report):
"One of the aspects that the Secretary of State will consider in any competition held for a concession will be the environmental standard of the tenderer's proposals".
That of itself is extremely vague. I wish to know from the Minister how these standards are to be measured. The CPRE observes cogently that privately-funded roads are justified by the Government on the basis of opportunities that they open up rather than on the basis of need. Yet it is surely need that should be the paramount consideration. That organisation goes on to argue that there is the strongest possible case that scrutiny of privately-funded roads, and of the regulations concerning them, needs to be far more extensive than even in the case of public roads.
I have already spelt out what we perceive as the limitations concerning environmental assessment as applied in the Bill. I do not believe that this is an issue that we can take on chance. We know that there are likely to be possible conflicts between costs and economic consequences of environmental protection for those who are to be engaged in the private sector in road building. There might well be conflict with wider environmental interests of a national and regional character. I agree with the CPRE when it argues that concessionnaires should be required to meet the highest environmental standards and that there should be no equivocation and no room for ambiguity about that.
I turn now to the amended subsection in Clause 1 and what it will achieve. Part I requires the highway authority, before concluding any agreement, to publish an environmental assessment. That would describe how the proposed road would contribute to national, regional and local environmental and planning policies. I hope that this will not be unduly controversial. It would improve the situation as it appears in the Bill at the moment and as the matter arose from the Minister's statement at Second Reading.
The second part of the new clause would inscribe in the Bill the assurances given by the Minister at Second Reading. Together with those assurances there would be a requirement that environmental assessment would cover any development opportunities likely to

105
be associated with the construction of a road. It would further provide for any road promoted under the Bill to be the subject of an environmental assessment, whether or not that would be required under the 1988 regulations. That would remove the ambiguity at a stroke. I beg to move.
3.30 p.m.
Lord Tordoff: I support the amendment and I am sure that the Committee will have listened with great interest to the noble Lord, Lord Clinton-Davis. He comes from the European Commission with consider-able experience of trying to introduce environmental assessments into a wide range of legislation throughout the length and breadth of Europe. Therefore we should take his words on a matter such as this with more than usual seriousness.
There is not a great deal more that I can say. It is obvious that the assurances given by the Government are at the minimum level and need to be spelt out much more clearly than they have been hitherto. That is why the amendments have been put down. The noble Lord referred to the CPRE. It seems to me that the CPRE has a good case here. In a sense the requirements for a private road should be somewhat more stringent than those for a public road. The object of the private road is presumably to make a profit for the organisation funding it and to open up development opportunities around and along the road, for perhaps the building of supermarkets or fun parks which themselves might have an environmental impact. Before a road goes ahead the cost to the environment of such potential developments needs to be taken into account. Although one might say that t he same rules should apply to a private road as apply to a public road, we have to be a little more than usually cautious in this case. The noble Lord, Lord Clinton-Davis, spelt out the case very well, and I hope that the amendment will be supported.
Lord Norrie: During the passage of the Environmental Protection Act I raised on a number of occasions the issue of environmental assessments. I therefore make no apology for the tenor of Amendment No. 11 moved by the noble Lord, Lord Clinton-Davis. Throughout Parts I and II of the Act there is no mention of the environment, yet we know the damage that roads and road vehicles can inflict both on our countryside and on the wider environment. The current road programme looks set to damage at least 37 sites of special scientific interest. Road vehicles contribute about 20 per cent. of carbon dioxide emissions and thus contribute to global warming, a point already made by the noble Lord, Lord Clinton-Davis. Those statistics are the tip of the iceberg but they illustrate how transport provision and environmental protection are inextricably linked. I wonder whether we can permit legislation which might well increase damage to our countryside unless we can be sure that the strongest safeguards are in place.
Environmental protection provides a clear and accepted mechanism by which the environmental impact of a new road can be addressed alongside the economic and social consequences. In particular, in
106
the case of privately funded roads, it is vital that the environmental impact is explicitly addressed. We must ensure that these roads do not become an excuse to open up areas of peaceful and unspoilt countryside which will be seen by the unscrupulous as ripe for development. In some cases local authorities may be persuaded into deals by potential economic benefits, and those benefits will be seen as justification for setting aside countryside protection.
For example, in depressed areas the opportunity to open up new tracts of lands for employment-generating uses may encourage a local authority to support a highly intrusive and damaging road proposal. The road will be the key to unlocking the development potential, allowing the developer, not the authority, to decide which site will be opened. Land use planning may then begin to shift from public control into the hands of the private developer. For these reasons there must be further environmental safeguards with privately funded road proposals. Development must continue to be carefully targeted and focused in line with our highly regarded land use planning policies. It is essential that these new roads should be seen to complement and net to be at cross purposes with these policies. This can be achieved only by including environmental considerations in the Bill.
Lord Nugent of Guildford: I listened with great interest and respect to the exposition of the noble Lord, Lord Clinton-Davis, on this matter, recognising the authority with which he speaks after his experience in Brussels. When the general directive on environ-mental impact assessments was before the appropriate Select Committee of this House the view was taken that the planning procedures in this country were so thorough and lengthy that they not only matched but probably exceeded the planning procedures of other countries. Therefore any elaborate additional system was not considered to be necessary. To that extent the kind of concessions that were made were asked for.
I turn to the noble Lord's main argument. He said that if these new roads are built, drivers will move on to them instead of using other forms of transport. There usually are not other forms of transport. Drivers will move on to them in order to escape congestion on existing roads. There will be a little more room to move which will make life easier for all of us. Undoubtedly in the countryside this will improve access to some villages and small towns. The new motorway system of this country has been enormously valuable in taking a huge volume of traffic off the country roads. I wish that we had more motorways. I live in the countryside and know how heavily used by traffic our little lanes are. We should do anything we can to take heavy traffic, especially freight traffic, off the little country lanes. Such an environmental advantage will weigh heavily with the Secretary of State.
The CPRE and the noble Lord made the point that in considering an application the Secretary of State should ensure that there are more stringent considerations with regard to environmental protection. I do not quite understand that point. The considerations should be the same as those for the

107
building of public roads. The process of public inquiries makes certain that every consideration is taken into account and that a proper balance is achieved between the amount of private property that has to be taken to build a road and the additional convenience and saving in costs to the general public who move on the road. I hope that my noble friend will take into account what will happen if these private roads are built. The driving public and freight traffic will move on to them to avoid heavy congestion on existing roads. I cannot imagine a more weighty consideration in the mind of the Secretary of State when he comes to look at the matter. Thank goodness they will not be paid for out of public funds.
Baroness White: I hesitate to intervene in the debate, but I should point out that for the CPRE one could also read the CPRW. I say that because in Wales we have similar apprehensions to those expressed by our sister organisation in England. We are not against more roads in the right place. I was somewhat concerned when the noble Lord, Lord Nugent, to whom I normally listen with the greatest respect, spoke as though we were opposing roads as such. We are greatly concerned that, before any consent is given, there should be adequate consideration of the potential environmental effects.
There may well be circumstances in which inadequately considered decisions are taken. In respect of the roads about which we are speaking—which would not just be roads built to relieve traffic congestion but also roads built to make a profit, presumably for the developers—it should be made perfectly clear that the facts must be brought out publicly before any such decisions are taken. I hope therefore that we shall not confuse the issue of whether or not such roads are required with the absolutely essential environmental investigations which should be carried out before any consents are given.
I speak for a country where we have received proposals for marinas and golf clubs in every direction and for casinos in the most unsuitable places—not to mention a tropical paradise which was to have been erected on the borders of Snowdonia. Fortunately that proposal was withdrawn.
Lord Renton: I am sure we can all agree that publicly and privately funded roads are not likely to have different effects on the environment. Therefore, the same kind of planning procedures should apply to both. It seems to me that the noble Lord, Lord Clinton-Davis, has performed a valuable service in helping us to ensure that we have adequate procedures for privately funded roads. Indeed it would be absurd for us to have less strict procedures for protecting the environment when we have privately funded roads compared with those to which we are accustomed, in the case of publicly funded roads, as my noble friend Lord Nugent pointed out. If it is felt desirable to write a provision in the Bill to make absolutely sure that that is the position, then by all means let us do so.
I have studied Amendment No. 11 with some care. I do not wish to make quibbling points on its drafting.
108
However, I think that the drafting would be improved if at the end of line 3 instead of the words "contributes to" we used the word "affects". Incidentally, that is consistent with the words which appear in the margin which refer to "Consideration of environmental effects".
When we look at subsection (2) (a) of the amendment I must say that my imagination is somewhat strained. It states that the concessionaire shall:
"(a) identify and publish a schedule of all development opportunities".
The paragraph continues to state that these are:
"dependent on access to the proposed special road".
The words "all development opportunities" require great forethought. They stretch the foresight which those concerned are supposed to have. Does that apply to all such development opportunities for the rest of time, all probable development opportunities or all reasonably foreseeable development opportunities? To state "all development opportunities" in that way leaves too much to chance. Indeed I believe that the amendment would be strengthened if we made it clear that its application was not quite so wide.
I shall be most interested to hear what my noble friend Lord Brabazon of Tara has to say on the matter. I am sure that your Lordships would wish to make certain that, in granting these unusual new powers for privately funded roads, we do not allow them to escape our planning procedures or to have an adverse effect on the environment which we do not allow in respect of public roads.
3.45 p.m.
Lord Brabazon of Tara: We have had an interesting debate on the first amendment to the Bill. I am slightly wary of the Opposition's readiness to believe that the more planning documents, assessments and consultations there are, the better the final decision will be. I fear that such processes too often merely delay decisions and do not make them any better.
Of course the environmental implications of any road scheme are important, including those of privately financed roads. The implications of roads, including privately financed ones, for town and country planning are important. Roads can open up opportunities for development: often those opportunities are welcomed—as Ministers know from the deputations they receive week in, week out; however, often they are not.
But the right time for these matters to be debated publicly is at the public inquiry, which will thoroughly scrutinise and explore the road scheme as a whole, with the toll order. Wherever required by the Highways Act and the European Directive on Environmental Impact Assessment a formal environ-mental statement will be published with the draft special road scheme and toll order.
I believe that the noble Lord, Lord Clinton-Davis, is wrong in thinking that environmental assessment would be carried out only where required by a narrow EC directive. All significant trunk road proposals are fully assessed under the manual of environmental

109
appraisal. All significant proposals have to be justified at the public inquiry. They are always fully examined, especially in areas of outstanding natural beauty. The same will apply to concession roads as applies to public roads. As my noble friends Lord Nugent and Lord Norrie pointed out, so indeed they should be. That will ensure that the public inquiry is well informed.
I should remind Members of the Committee that an environmental statement includes sufficient data to identify and assess the main effects which the scheme is likely to have upon the environment and a description of the measures proposed to mitigate adverse effects, together with a non-technical summary. With the environmental assessment, and the justification at the public inquiry, these schemes will be subject to a rigorous examination similar to that of the department's own conventional schemes. I submit that there is no need to erect any additional hurdles.
Special mention was made of development control by the noble Lord, Lord Tordoff, and by my noble friend Lord Norrie. First and foremost, that is the responsibility of the local planning authorities. They have adequate powers to prevent inappropriate development in the green belt and similar environmentally sensitive areas, and to control it elsewhere. Moreover, Clause 16 gives the highway authority control over accesses to a tolled road, thus giving it a virtual veto over development.
I was rather surprised that my noble friend Lord Norrie was so critical of local authorities which decide that they want development in order to help their depressed areas and which believe that private finance may assist. I believe that such local authorities should be encouraged in this belief, provided that they consider the environmental implications. They should not have new and unprecedented obstacles put in their way.
I should perhaps outline our policy on development in connection with privately financed roads. We know that a new road will open up land for development, and we want a concessionaire to be able to reap some of the gains from that. It will help the viability of the road, and keep down tolls. That is why Clause 16 gives the concessionaire, as well as the highway authority, control over access. We do not intend development near concession roads, any more than development near trunk roads, to make them unsafe or inadequate for their purpose. That is why the highway authority, as well as the concessionaire, will have control over access.
None of that requires publication of a schedule of development opportunities before a concession agreement is made. As my noble friend Lord Renton said, I doubt whether a concessionaire would know, at that stage, what all the development opportunities would be. He will have no way of discovering the intentions of all the landowners, or the ideas that every potential developer might have. The publication of a partial list would merely cause excitement in the development community at a time when the road proposal had not even begun its statutory procedures.
110
So, while I acknowledge the great importance of the environment and of development gains in roads policy generally, not least as regards concession roads, I cannot recommend the Committee to make an amendment that would do nothing but increase bureaucracy and delay.
Lord Clinton-Davis: With respect to the Minister, I found that response depressing and unhelpful. Perhaps I may at the outset say that I support what my noble friend Lady White and the noble Lord, Lord Norrie, said. The Minister dealt somewhat cursorily with the points that they made in support of the new clauses. I am the first to acknowledge, not having—no Opposition ever does—the drafting capacity available to the Government, that some improvement in the language of the new clause might be required, but I want to deal here with the principle rather than the detail.
Before I come to that point, perhaps I may address the wider environmental considerations affecting tolls. I have received information today that, in the United States on the Merritt Parkway, which is an important transport link between New York and New England —I stand to be corrected on this point—they are abandoning tolls for environmental reasons, because the idling of motor cars at the toll booths causes serious environmental pollution. I do not expect the Minister to answer that point immediately, but perhaps he will look into it and write to me and we may return to it at a later stage.
Let me turn to the points made by a number of Members of the Committee opposite. The noble Lord, Lord Nugent, has considerable experience of transport, as we all acknowledge. One must not lightly disregard what he has to say. Disregard it I do, but not lightly. He said that he could not understand why more stringent provisions, as encouraged by the CPRE, in respect of developments by private concessionaires rather than public authorities (the Government or other highway authorities) should be required. The answer essentially is, as I pointed out, that a conflict might arise between wider environmental considerations and the narrower economic considerations which might be applied by the concessionaires. There is a second factor, which is that the public authorities are of course publicly accountable—that is a cogent point—in contrast to the private concessionaire.
The noble Lord said that he was surprised that I said that drivers might be attracted to drive on more congested roads rather than use the new ones. One has merely to look at the situation in France, where the motorways are empty compared with the other heavily used roads.
The noble Lord, Lord Renton, said that the word "affects" is probably better than the word we have used. I concede that point. The noble Lord has an eye for such matters. In all friendship, I acknowledge his great cogency in these matters. I should perhaps have consulted him when drafting the amendment. I am sure that it would have been a better one.

111
On the question of general foresight, subsection (2) (a) of Amendment No. 11 reads:
"identify and publish a schedule of all development opportunities which are dependent on access to the proposed special road".
That does not require the huge measure of foresight described by the noble Lord. It may be a point that we should look into, but it is the general theme of those matters that one should address.
I turn immediately to the points made by the Minister. The gravamen of his argument effectively was that we did not need environmental assessment because public inquiries, as they have been going on for years and years, were sufficient. Why then did the Government agree, as they eventually did, to an admittedly highly qualified environmental impact assessment directive? There must have been a case for it or the Government would never have subscribed to that proposal. It goes further than the ordinary planning inquiries with which the country has been familiar for so long.
A planning inquiry, by its very nature, is much more restricted. It does not in all instances have to take into account the much broader considerations which I and the noble Lord, Lord Tordoff, addressed earlier. We come then to the Minister's understanding of the directive and the Highways (Assessment of Environmental Effects) Regulations 1988, where it is clearly stated in paragraph 2—to which I draw the Minister's attention—that:
"In any case where the Secretary of State has under consideration the construction of a new highway or the improvement of an existing highway, he shall determine, before the date of publication of details of the project, whether or not it falls within Annex I or Annex II to (the) Council directive".
Annex I is a mandatory provision, which provides that there must be an environmental assessment. There is no question of the Minister's discretion. He would have to agree. Where there is the construction of motorways, express roads and lines for long distance railway traffic and airports, that does not arise. It is the construction of motorways and express roads which is relevant here. Other roads come within Annex II. That is permissive so far as the Minister is concerned. How are we to determine, within the terms of the proposal now before us, whether the Minister will consider that a project is to be an issue within Annex II, giving him the right to say that there is no need for an environmental impact assessment? That is a point which needs far greater clarification than what was said by the Minister today, which, with respect, appeared—I do not say this too lightly—to be a trifle complacent.
I ask the Minister to give an assurance to the Committee that the arguments that we have produced —that in all such cases there needs to be an environmental assessment, taking into account the effect that even relatively small developments can have on the countryside in terms of linking up with the transport infrastructure generally—show that they are matters which need to be dealt with in that way. The
112
amendments have considerable support, as I have said, from the CPRE, the Association of Municipal Authorities and many others.
I hope that the Government will be rather more positive in replying to the debate than has hitherto been the case; otherwise I fear that I shall be forced to take the opinion of the Committee on the matter.
Lord Brabazon of Tara: I can only repeat what I said in my answer to the debate. Where an environmental impact assessment is necessary—and it is carried out for all significant trunk road proposals —there will be no difference whether it is a toll road or a public highway.
Lord Clinton-Davis: That reply adds nothing to what the Minister has said, and he stated that it would not. In those circumstances, I must take the opinion of the Committee.
4.1 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 157.

Division No. 1

CONTENTS

Addington, L.

Hutchinson of Lullington, L.

Annan, L.

Jacques, L.

Attlee, E.

Jay, L.

Barnett, L.

Jeger, B.

Birk, B.

Jenkins of Putney, L.

Blackstone, B.

John-Mackie, L.

Boston of Faversham, L.

Kennet, L.

Bottomley, L.

Leatherland, L.

Broadbridge, L.

Listowel, E.

Bruce of Donington, L.

Llewelyn-Davies of Hastoe, B.

Callaghan of Cardiff, L.

Lockwood, B.

Campbell of Eskan, L.

Longford, E.

Carmichael of Kelvingrove, L.

Lovell-Davis, L.

Carter, L.

McIntosh of Haringey, L.

Castle of Blackburn, B.

Molloy, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L.

Clinton-Davis, L.

Murray of Epping Forest, L.

Cocks of Hartcliffe, L.

Nicol, B.

David, B.

Northfield, L.

Dean of Beswick, L.

Oram, L.

Donaldson of Kingsbridge, L.

Phillips, B.

Dormand of Easington, L.

Pitt of Hampstead, L.

Ennals, L.

Prys-Davies, L.

Ewart-Biggs, B.

Rea, L.

Ezra, L.

Ritchie of Dundee, L.

Falkland, V. [Teller.]

Rochester, L.

Fisher of Rednal, B.

Sainsbury, L.

Gallacher, L.

Seear, B.

Galpern, L.

Serota, B.

Gladwyn, L.

Shackleton, L.

Glenamara, L.

Shepherd, L.

Graham of Edmonton, L. [Teller.]

Stallard, L.

Stoddart of Swindon, L.

Gregson, L.

Strabolgi, L.

Grey, E.

Taylor of Gryfe, L.

Haden-Guest, L.

Tordoff, L.

Hampton, L.

Turner of Camden, B.

Hanworth, V.

Underhill, L.

Harris of Greenwich, L.

Varley, L.

Hatch of Lusby, L.

Wallace of Coslany, L.

Hirshfield, L.

Walpole, L.

Hollis of Heigham, B.

Walston, L.

Holme of Cheltenham, L.

Whaddon, L.

Hooson, L.

White, B.

Howie of Troon, L.

Williams of Elvel, L.

Hunt, L.

Winchilsea and Nottingham, E.

113

NOT-CONTENTS

Aldington, L.

Lucas of Chilworth, L.

Alexander of Tunis, E.

Lyell, L.

Alexander of Weedon, L.

McColl of Dulwich, L.

Allenby of Megiddo, V.

Mackay of Clashfern, L.

Allerton, L.

Macleod of Borve, B.

Alport, L.

Malmesbury, E.

Arran, E.

Mancroft, L.

Astor, V.

Manton, L.

Auckland, L.

Margadale, L.

Belhaven and Stenton, L.

Marsh, L.

Beloff, L.

Merrivale, L.

Bessborough, E.

Mersey, V.

Birdwood, L.

Middleton, L.

Blatch, B.

Milverton, L.

Blyth, L.

Montgomery of Alamein, V.

Boardman, L.

Morris, L.

Borthwick, L.

Mottistone, L.

Boyd-Carpenter, L.

Mowbray and Stourton, L.

Brabazon of Tara, L.

Moyne, L.

Braybrooke, L.

Munster, E.

Brightman, L.

Murton of Lindisfarne, L.

Brigstocke, B.

Norrie, L.

Brocket, L.

Northbourne, L.

Brookes, L.

Nugent of Guildford, L.

Brougham and Vaux, L.

Onslow, E.

Butterworth, L.

Orkney, E.

Caithness, E.

Orr-Ewing, L.

Campbell of Alloway, L.

Oxfuird, V.

Campbell of Croy, L.

Park of Monmouth, B.

Cavendish of Furness, L.

Pearson of Rannoch, L.

Clitheroe, L.

Pender, L.

Cockfield, L.

Penrhyn, L.

Constantine of Stanmore, L.

Plummer of St. Marylebone, L.

Cottesloe, L.

Porritt, L.

Cox, B.

Quinton, L.

Craigton, L.

Rankeillour, L.

Crawshaw, L.

Reay, L.

Crickhowell, L.

Renton, L.

Cullen of Ashbourne, L.

Renwick, L.

Dacre of Glanton, L.

Rochdale, V.

Daventry, V.

Romney, E.

Davidson, V. [Teller.]

St. Aldwyn, E.

Denham, L.

St. Davids, V.

Effingham, E.

Sanderson of Bowden, L.

Elibank, L.

Seebohm, L.

Ellenborough, L.

Selborne, E.

Elles, B.

Sempill, Ly.

Elton, L.

Shannon, E.

Erne, E.

Sharples, B.

Faithfull, B.

Simon of Glaisdale, L.

Fanshawe of Richmond, L.

Skelmersdale, L.

Ferrers, E.

Slim, V.

Flather, B.

Soulsby of Swaffham Prior, L.

Fraser of Carmyllie, L.

Strange, B.

Fraser of Kilmorack, L.

Strathcarron, L.

Gardner of Parkes, B.

Strathclyde, L.

Gibson-Watt, L.

Strathmore and Kinghorne, E.

Gisborough, L.

Sudeley, L.

Grimston of Westbury, L.

Suffield, L.

Grimthorpe, L.

Swansea, L.

Hardinge of Penshurst, L.

Swinfen, L.

Harmar-Nicholls, L.

Tenby, V.

Harvington, L.

Terrington, L.

Hayter, L.

Teviot, L.

Hertford, M.

Thomas of Gwydir, L.

Hooper, B.

Thomas of Swynnerton, L.

Hylton-Foster, B.

Tranmire, L.

Jenkin of Roding, L.

Trumpington, B.

Johnston of Rockport, L.

Tryon, L.

Kemsley, V.

Ullswater, V.

Killearn, L.

Vaux of Harrowden, L.

Kinnaird, L.

Waddington, L.

Kitchener, E.

Wade of Chorlton, L.

Knollys, V.

Whitelaw, V.

Lauderdale, E.

Wise, L.

Layton, L.

Wolfson, L.

Lindsey and Abingdon, E.

Wyatt of Weeford, L.

Lloyd-George of Dwyfor, E.

Wynford, L.

Long, V. [Teller.]

Resolved in the negative, and amendment disagreed to accordingly.
4.10 p.m.
Lord Tordoff Lord Tordoff moved Amendment No. 2:
Page 1, line 12, leave out ("operation or improvement") and insert ("or operation").
The noble Lord said: In moving Amendment No. 2 I shall speak also, for the convenience of the Committee, to Amendment No. 5. I shall be brief as I simply wish to probe the Government to discover what their intentions are in this matter. The Committee will note that Amendment No. 2 seeks to delete the words "or improvement" from line 12 on page 1. Amendment No. 5 seeks to place a blanket ban on concession agreements being made under the Bill,
"for a road already in use by the public".
We want to try to prevent the privatisation of existing roads by the back door.
The Long Title of the Bill refers to new roads. Therefore, I assume that it is not the intention of the Government to allow this legislation to be used for the tolling of existing roads. However, the inclusion of the word "improvement" in this part of the Bill leaves one with grounds for suspicion. After all, our existing roads have been paid for by the taxpayer. One simply does not want to see them handed over to private developers for their own purposes. As I said, I am merely putting a simple question to the Government and I look forward with great interest to hearing their reply. I beg to move.
Lord Underhill: As the amendment also stands in the name of my noble friend Lord Clinton-Davis and myself, I should explain why we support the noble Lord, Lord Tordoff. On Second Reading we made it absolutely clear that we had no objection to privately funded roads. However, as the noble Lord, Lord Tordoff, said, there must be some reason why the Government have added the words "or improvement" to the Bill.
Improvements can only be applicable to existing roads. The possibility of a toll being introduced on an existing road that has been improved must be against the public interest. No concessionaire will seek a concession purely as a philanthropic gesture. Such a concessionaire does not want to hand money over to the taxpayer and the motorist; he wants a return on his money. The only way he can obtain a return is by charging a toll. We want an assurance from the Government that there is no possibility of converting a present non-toll road into a toll road. This is rather more than a probing amendment. It seeks to discover why the Government have added the words "or improvement".
Will the Government accept Amendment No. 5 which states that no concession agreement may be made on a road that is already a public road? We heartily support both amendments.
4.15 p.m.
Lord Brabazon of Tara: I was rather surprised when I saw the amendment on the Marshalled List. I was surprised that the noble Lord, Lord Tordoff, might

115
think it a good idea to let a concession for 30, 40 or 50 years and not give a concessionaire any powers to improve the road. I ask the Committee to imagine what our present network would be like if there had been no improvements for such a length of time.
Improvement does not only mean major works like widening, which could be controversial in some circumstances. It covers such things as tree planting and installing guard rails, which I am sure the Committee would agree are beneficial. It would be absurd if every time a tree needed replacing the concessionaire had to ask the highway authority to plant a new one. That explains the use of the word "improvement" in the Bill.
I can of course understand the anxieties that led to the tabling of these amendments. As the noble Lord, Lord Tordoff, said, there was concern that we or our successors might grant a concession which allowed a private firm to take over, improve and toll an existing road thus depriving the public of the right to use it free of charge. However, we have made it perfectly clear that that is not our policy. The Bill contains safeguards against our successors or a local authority doing so, though they are not to be found in Clause 1. Under Clause 6 a toll order must be made concurrently with a special road scheme. That is essentially a scheme to authorise the construction of a new road.
Having said that, I must point out that a special road scheme may include some stretches of existing roads and often it is sensible for it to do so. There are examples in the Department of Transport's preferred route for the Birmingham northern relief road. However, in the competition we are asking tenderers to give us their proposals for dealing with the local traffic which would be diverted from those lengths of road. The alternative must be free to the user. I must assure the Committee that it would not be possible to hand over an existing road to a concessionaire to improve or toll without statutory procedures. There would have to be not only a special road scheme but also an appropriation order under Section 18 of the Highways Act 1980. Both would be subject to a public inquiry if there were objections.
There is one other matter on which I can reassure the Committee. The inclusion of the word "improvement" in Clause 1 does not confer on the concessionaire any power to extend the length of his roads or to acquire additional land for widening by compulsory purchase. Any improvement which depended on compulsory purchase would require a compulsory purchase order authorising the highway authority and not the concessionaire to acquire land. Such an order would be subject to the normal procedures with the strong possibility of a public inquiry. In all such matters a concessionaire would be under the same constraints and obligations as a highway authority and anything which required authorisation by an order could only be done through the highway authority acting under its own powers.
I hope, therefore, that on reflection the Committee will agree that for some concession agreements it will
116
be very much in the public interest if a concessionaire is able to carry out improvements. It will be for those negotiating individual agreements to decide which improvement powers a concessionaire may exercise and whether the highway authority needs to be consulted or give its consent in advance. I hope that with the assurances I have been able to give the noble Lord will feel able to withdraw his amendment.
Lord Tordoff: I am most grateful to the Minister for that explanation. It gave me considerable reassurance. I shall have to read his reply in considerable detail as a certain amount of it was in "Civil Service-ese", though it was beautifully read. However, I take the Minister's point on improvements. I hope he will understand that we were worried that the word "improvement" might have a wider meaning than the one he gave it. I hope the Minister will take another look at that word to check that there is no possibility of a concessionaire misinterpreting it at some stage in the future. I understood what the Minister said as regards Clause 6 being a block on present roads being taken over. With the slight reservation that I want to study what the Minister said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 4:
Page 1, line 14, at end insert ("where the income from such a toll equates over such period as may be specified by the Secretary of State in regulations with the cost involved in the provision of the infrastructure").
The noble Lord said: This amendment simply seeks to probe the Government's thinking on toll roads. There appears to be an inconsistency in the approach that the Government have adopted over the years and in the not far distant past. I recall only too well British Ministers arguing in the transport council that toll roads were an abomination. They were thinking particularly of the situation in France but also of that in other member states of the Community. In other words, they were rather unenthusiastic about toll roads.
The reason for their lack of enthusiasm was a good one. They felt that toll roads did not provide a level playing field for the road haulage industry and that if toll roads existed in some member states but not in others there would be an unfavourable impact on the objective of securing harmonised conditions of competition. That was the gravamen of the Government's argument. Therefore, they were enthusiastic supporters of the Commission's line.
I believe however that the Commission has changed its position to the extent that if tolls are necessary they are only acceptable where the amount is in line with the cost involved in the provision of the infrastructure. That would defeat the whole purpose of what the Government are about.
We need to know, first, how the Government justify their change of stance from, say, 1985 to 1987 or 1988, and their complete opposition at that stage to toll

117
roads subject only to estuarial crossings and other specific exceptions. In general the Government adopted that position. Why the change?
Secondly, the Minister said that there had been discussions with the Commission. How did the Government react to the line that I have described the Commission taking? It is incumbent on the Government to disclose that to the Committee. In fairness to the Government they did not have to consult. But they did, so they say. What did they say to the Commission about the line that it was taking? And what was the effect generally on the Government's relations with the Commision in the development of road policy? I beg to move.
Lord Brabazon of Tara: Again I find this amendment rather surprising. It would be very restrictive set against the whole concept of toll roads. We are talking only a few days after the Channel Tunnel breakthrough, an ample demonstration that the private sector can and will undertake colossal infrastructure projects, taking enormous risks, provided that the potential rewards are great. Does anyone believe that the capital for that project would have been realised, initially and at later stages, if investors had been told, as this amendment says, that as soon as their costs had been recouped the asset would be taken away from them? No. We should have had no project, an abandoned one, or a massive bill to the taxpayer.
I could go on about the amendment. I wish to answer particularly the point that the noble Lord made about European Commission costs. He asked how the Government justified their change of stance since, I think, 1985. The answer is simple. It is because we have since that time developed a policy on private finance for roads.
The Government are not, of course, giving road promoters a licence to print money for ever. Concessions will be for a limited period following which all functions relating to the road will revert to the highway authority. Where there is a monopoly there will, in the toll order, be a maximum level of toll prescribed. But in general the protection of the consumer will be competition: first, the competition that will be held before a concession is let; and secondly—and most importantly in the case of this amendment and the noble Lord's arguments about the Commission—the competition that the concessionaire will face from the alternative free roads which a dissatisfied road user will be able to choose. With that explanation, I hope that the noble Lord will be satisfied.
Lord Clinton-Davis: I wonder whether the noble Lord would now concede that it was not just in 1985 but also in 1986 and, I believe, in 1987, that the Government were taking a fiercely strong view about tolls in France and elsewhere on the grounds that they were prejudicial to our own road haulage industry? Is he now saying that the French were right all the time, as were the Italians and Spanish, in applying tolls and that the Government were hopelessly wrong during that period?
Lord Brabazon of Tara: As I said, we have had a chance to review our policy on toll roads. I am sorry that the noble Lord thinks that we should never review our policy on anything and especially what emanates from Brussels. We take notice of what is said, and occasionally we change our minds.
Lord Tordoff: It is admirable to find a government that change their mind. It is rare. It is about as rare as changing their leader. I have to say to the noble Lord that, to the question why did the Government change their mind, the answer "because we changed our minds" is not helpful to the Committee. I wonder whether the noble Lord can go further in explaining why the Government now take a different view? I thought that was the question that the noble Lord, Lord Clinton-Davis, first asked.
Lord Brabazon of Tara: I am not sure how much further I can go. We looked at the scope for private finance in road construction. We published a Green Paper. The responses on the whole were favourable, and a Bill is now before your Lordships' Committee.
Lord Clinton-Davis: That is scarcely adding anything to the original answer, which was not an answer. What it really comes to is that for three years the Ministers attending transport councils were hopelessly wrong. That is what it comes to. Why did they not think up their policy a little earlier? Why has it taken them so long? I am all in favour of the Government reviewing their policies. I hope that they will do it right across the board. The country will be infinitely better off in the short period in which they remain in office. But we have not had an explanation at all as to why the Government took their stance in those days.
There is a serious point here, not just a debating point. Minister after Minister put forward to their colleagues in council the point that it is manifestly unfair to our own road haulage industry to be faced by tolls elsewhere, because it is having to pay for heavy goods vehicle licences and imposts of that kind, and therefore it is paying twice over if it has to pay tolls. Are we now to understand that the Government say that all that can be thrown out of the window because they are going to take a position rather similar to that of those member states which engaged in this policy before?
That would presuppose that the Government are going to engage in a substantial policy of privately-financed road building and the use of tolls, and that is not what the Government have been saying during the course of this debate. We are left in a cloud of confusion, and I suggest that the Minister has left us in that cloud of confusion further by his response today. However, I suspect that we are not going to get much further with the Minister because he is engaging in non-answers this afternoon. In those circumstances, I beg leave to withdraw the amendment.
Lord Brabazon of Tara: Before the noble Lord withdraws the amendment, may I say that I feel that I have not been engaging in non-answers this afternoon. The noble Lord may think that the answer I gave to the first amendment was a non-answer but

119
many others, certainly on this side of the Committee, would disagree with him. Again, I could go a little further but I am sure that I shall never go far enough to satisfy the noble Lord in saying, as I said at Second Reading, that the Commission has not commented critically on these proposals.
Of course the Commission's worries have been about public tolls in some countries which could be used as a tax. Ours in these proposals will be market-determined. We are still unhappy at any imbalance between member states in costs of road haulage, but we no longer believe that the fact that the French have tolls and the Germans do not is an intolerable imbalance.
Lord Boyd-Carpenter: Is my noble friend aware how amused many of us are to see the supposedly progressive Labour Party in opposition objecting to any change in policy? Is he aware that its wonderful, innate conservatism of insisting that no policy should be changed, even if it is thought over again, gives great pleasure to some of us?
Lord Donaldson of Kingsbridge: The insistence that I heard was that it should not be changed without a reason; we are still waiting to hear the reason.
Lord Clinton-Davis: I am most gratified to hear that intervention by the noble Lord, Lord Boyd-Carpenter. Contrary to what he said, I would encourage a change in virtually every government policy right across the board. I have not said that I oppose them. I have been trying to probe why the Government have changed their stance. The Minister has offered us no conclusive reason for that, but has simply said, "We have changed our policy". So be it. I will not press the matter any further at this stage and I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.5 not moved.]
4.30 p.m.
Lord Underhill Lord Underhill moved Amendment No. 6:
Page 2, line 6, at end insert:
("(5) A concession agreement relating to the design, construction, maintenance, operation or improvement of a special road shall provide that where the concessionaire decides not to proceed with the proposed road, the concessionaire shall pay to the highway authority such compensation in respect of costs incurred by it as may be determined in accordance with the agreement.").
The noble Lord said: In moving Amendment No. 6, I want to point out that its aim is to ensure that compensation is available to a highway authority on the same basis as is currently provided in relation to a concessionaire in Clause 1(4). The Bill as drafted goes to great lengths to protect the interests of the concessionaire. For example, Clause 1(4) would require the highway authority to pay compensation to a concessionaire if either the highway authority does not proceed with the proposal or a special road scheme is not made.
Commenting on this clause at Second Reading, the Minister said:
"The existing authorisation procedure for public roads will in broad terms apply to these new roads. If following a public
120
inquiry it is decided not to proceed with the scheme, the promoter will be able to receive compensation from the highway authority in respect of costs incurred in working up the scheme, as determined under the concession agreement".
The Minister went further and said:
"If the concession agreement terminates prematurely (if, for example, the concessionaire goes bankrupt) the highway authority will be obliged where practical to 'sell' the concession on to a new private sector promoter."—[Official Report, 20/11/90; col. 628.]
This is dealt with in Clause 5.
The Bill makes no provision for any compensation to the highway authority if a concessionaire, for whatever reason, pulls out of a scheme before the stage envisaged by Clause 5 is reached. Just as a concessionaire would inevitably incur costs in preparing a scheme up to the authorisation stage, so the highway authority would inevitably incur costs as a result of discussions and joint working with the concessionaire during that period.
The amendment is based on the wording of subsection (4). If the reason for work on a proposed road not proceeding lies with the concessionaire, this clause would require compensation to be paid to the highway authority to cover any costs it may have incurred in developing the proposal.
The amendment seems a common sense and a fair one, so that the highway authority is treated in just the same way as the present subsection will treat the concessionaire. I beg to move.
Lord Brabazon of Tara: I am not sure that this amendment is strictly necessary. Any highway authority worth its salt would insist on a provision in a concession agreement requiring the concessionaire to indemnify it against his abandoning a project to which, let us remember, he will have committed himself by spending money in a competition. Subsection (4) of this clause has a different purpose —to reassure those who will be putting money into new road projects that they will not lose it all if the project fails through no fault of their own.
There may, however, be merit, if strictly no need, to have in the Bill the provision proposed in this amendment. I can certainly see that there is justice in having the balance. But I could not accept the present wording. As currently drafted, there would be some confusion if, for example, a concessionaire decided to abandon a scheme because the highway authority had not met its obligations. The concessionaire might thus become liable for the highway authority's costs, even though the decision not to continue had been, in effect, forced upon him. I will undertake therefore to consider this further, and I thank the noble Lord for bringing it to our attention.
Lord Underhill: I am grateful for that assurance. At the outset I was doubtful about what the noble Lord would say because he said that he thought the amendment was not strictly necessary. But I now see that he thinks it may be necessary and he has said that he will have a careful look at the wording. I shall look forward to seeing what comes forward on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Tordoff Lord Tordoff moved Amendment No. 7:
Page 2, line 6, at end insert:
("(5) A concession agreement shall provide that the costs of policing the special road shall be borne by the concessionaire, and such costs shall be determinable, in respect of any section of such a road falling within its area, by the relevant police authority.").
The noble Lord said: I now come to a slightly different subject, because in moving Amendment No. 7 I raise the question of the costs of policing. The amendment specifically refers to policing, but it could go wider. Again, this is very much a probing amendment to see the Government's reaction to this point. It could be taken to include ambulance services, fire services and so on.
The cost of providing services of this sort, particularly policing, is met out of the Exchequer. Although hypothecation is never allowed, road fund taxation obviously goes some way towards providing for the payment of these services. I suppose that it would be possible for the Exchequer to make a charge on the Department of Transport, or for the police to make a charge on the Department of Transport, for providing services on public roads. However, we would not do that as it would just be a book-keeping entry.
The situation in regard to private roads is rather different. Where a road is designed to make a profit for concessionaires, we do not believe that the services should be provided free, funded by the Exchequer. Let me say straight away that we on these Benches, and I suspect noble Lords in other parts of the Committee, would not welcome the introduction of private police forces onto these new roads. Nevertheless the concessionaire should be prepared to pay and the true cost should be shown in the accounting process. I suppose one might consider this to be somewhat like the situation at football grounds, where the owners of the football grounds have to pay for the police to be there, even though it is in the public interest for the police to be present.
As I said, this amendment could go wider. I have concentrated on the police only for the purpose of giving this matter an airing this afternoon, and I look forward with interest to what the Minister has to say. I beg to move.
Lord Brabazon of Tara: This amendment raises a very important point. Let me, first, reassure the noble Lord, Lord Tordoff, that the police will enforce the law on concession roads just as on all other roads, and that the law will be the same. Concession roads will not be places where motorists can get away with drunken driving or with speeding, or where lorries never have their weights or their tachographs checked. It will be for the police, in their own discretion, to decide what enforcement presence is required, and how to deploy it.
Let me remind your Lordships that concession roads under the Bill will be highways. They will not be privately owned; Clause 1(3) of the Bill makes this crystal clear. The public will have their common law rights to use them as highways, subject, of course, to their paying the toll.
122
The case made by the noble Lord, Lord Tordoff, is not therefore an overwhelming one. Nor does it fit in well with the line of argument that ran through many of the Second Reading speeches, and through many of the amendments before us today, that concession roads, if they exist at all, should be integrated into the planning and operation of the rest of the highway network. It does, nevertheless, have some force, particularly in respect of any roads which would not have been provided by a highway authority but for the initiative of a promoter. As the noble Lord has said, there are some analogies with, for example, football grounds, where the police are reimbursed by the football ground owner; and we have always made it clear that a concessionaire should meet all the costs of operation of a road, in return for the right to toll it.
Our intention therefore is that when a promoter puts forward a proposal for a road which is not in the highway authority's existing programme, and which it would not itself have provided, it should be made clear from the beginning—for instance, in the tender invitation document —that policing costs will fall to the concessionaire. I do not think that it would be fair to the concessionaire to leave entirely to the police authority determination of the amount that should be paid, as this amendment seeks to do. Some form of a formula or provision for arbitration might he required. I do not believe that any provision in the Bill is needed for that. However, there are some implications for the rule of contract and if a provision would be helpful, I shall certainly come back to it. With that assurance, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Harris of Greenwich: We are moderately satisfied with what the Minister has said. I should like to ask him a number of questions arising from his reply. Personally, I believe that this question should be on the face of the Bill. It would reassure the Association of Chief Police Officers, and I think that it would reassure local authorities, to know that in the circumstances described by the noble Lord there would be a repayment by the concessionaire.
For instance, perhaps I may draw attention to the provisions of the Channel Tunnel Bill. Those Members of the Committee who had the good fortune to serve on the Select Committee dealing with that Bill were told—indeed, it was common ground—that the total costs of policing would be met by the concessionaires. The costs involved were very substantial. We were told that it was likely that there would be an increase in the establishment of the Kent police force by over 200 men and women officers.
I do not believe that an issue of this kind should be left out of the Bill. Local police authorities are entitled to know specifically what they can expect to receive —I shall come back to that point in a moment—and what will be the formula used to deal with the question of how much will be received from the concessionaire. More specifically, I should like to draw the Minister's attention to the Audit Commission's report published last month entitled Taking care of the coppers—I think that is a light jest from the Audit Commission! — income generation by provincial police forces. The sums

123
of money involved are again very substantial. The Minister's department will no doubt have a copy of the report but just let me give the Committee an illustration of what is involved. According to the Audit Commission, the calculation of the cost of a policeman for one year is over £33,000. That takes account of pay, overtime, housing allowance, uniform, employer's national insurance contributions and pension costs which themselves are £4,500. So the sums of money are significant.
However, apart from the cost of the individual police officers, who would be working on a road which had been constructed in order to provide a profit for the concessionaire, one has to consider the cost of the vehicles which they use, the cost of communication support and indeed the command and control systems at the force headquarters as well as the use of that equipment by police officers and civilian employees. By any standards, the sums of money are considerable.
The question which was dealt with by the Minister and to which my noble friend Lord Tordoff referred concerned football grounds. Indeed the Audit Commission's report censured some police authorities for not charging an adequate sum of money—the full economic cost—both as far as football grounds are concerned and also the large number of other payments which they should have received from people using police services. Therefore, I believe that we are talking about a very important issue.
There is another important point; namely, who will decide the level of police cover on a road where, according to the Minister, the concessionaire will make a payment. Will it be the chief officer of police? Will he be entitled to make that judgement himself? Inevitably the concessionaire, given the scale of the costs involved, to which I have referred, will arguably want to have the minimum possible level of cover because the costs will come from his profits. Therefore the level of police cover is itself a matter of considerable importance. In my view, it is quite clear that the chief officer of police must make that decision. I agree with the noble Lord to the extent that if there are disputes there can sometimes be questions of arbitration. But, as he will recall, it has been this Government's view, as it was their predecessor's, that operational matters are exclusively a question for the chief officer. In my view therefore so far as concerns the level of police cover, it would not be right to submit that particular issue to arbitration.
I return to the point which I made at the beginning. I very much hope that the Minister will look again at this matter and consider whether it is possible to bring forward some amendment at Report stage, Third Reading or whenever it may be, in order to deal with this issue so that police authorities and chief officers of police will know exactly where they stand. In saying that, I have one final question: has there been a discussion on this matter with the Association of Chief Police Officers?
4.45 p.m.
Lord Howie of Troon: I may well have missed the point during the earlier part of the debate but the analogy between roads and railways leaps to mind. We have had the railway police for a long time, in fact since the railways were what I might call concessionaires. They were private companies long before 1923 and back into the past century. It seems to me that there is an analogy here. I am not too sure what it is but, if the railways pay for their police, the road concessionaires ought to pay for theirs.
That might be obvious and might well already have been said. On the other hand, if it turns out that under the Bill the road concessionaires are relieved of paying for the police, would it not be equitable if the railways equally were relieved of paying for theirs?
Lord Clinton-Davis: I support strongly the highly pertinent observations made by the noble Lord, Lord Harris of Greenwich. In particular, the point that he made about this not being a matter which should simply be one for contractual relationships but inscribed onto the face of the Bill, is overwhelmingly important. It is important for reasons additional to those offered by the Minister.
First, it is important for the reason that the police were taken to task over the inadequate amount of money that was being charged for policing of football grounds. That leads one to suppose that this is a matter which requires public invigilation or is capable of being invigilated by the public. It needs to be transparent, not simply for the police and the local authorities, but also for the public at large. Certainly, if it were left to a contractual relationship that would not happen. Or at least one would have to search through the highways and byways asking Parliamentary Questions about it, which is wholly unsatisfactory.
There is also the point about the strategic considerations introduced by the noble Lord. That deserves far more of an answer than has been provided hitherto, indeed if any answer has been given. Surely it must be left to the chief officer to decide the level of policing and the way in which it is undertaken. Anything short of that would be potentially disastrous.
I was interested to hear about the level of costing attributable to a single police officer, which I had not realised. The Committee is indebted to the noble Lord for providing that information. In addition there are all sorts of infrastructural costs which have to be taken into account. One wonders whether it will be possible sufficiently to foresee the increase in charges that would have to be made at the beginning of a contract. A contract which stated, "The charges may be increased in relation to discussions between the police authority, the concessionaire and perhaps the Government," would not offer the transparency required. Nor would it provide the flexibility that also needs to be introduced.
For those reasons, in addition to the very powerful reasons that have already been advanced by the noble Lord, Lord Harris, I hope that the Minister will

125
reconsider the matter. The Minister said that it is a matter of considerable importance. Perhaps he will go further and say he proposes to comment further upon it at Report, rather than deciding today that he is not prepared to move. The Committee would be grateful to him.
Lord Brabazon of Tara: With respect to the noble Lord, Lord Clinton-Davis, that is exactly what I said in my reply to the noble Lord, Lord Tordoff: that we would look at the matter. I adduced some arguments in favour of it and some against. However, I said that we would consider it. I am sorry if the noble Lord was not listening to my speech—as I think he was not doing earlier.
However, I listened carefully to the very interesting points that the noble Lord, Lord Harris of Greenwich, made. I certainly wish to consult on the issues that he raised. There are parallels with the Channel Tunnel legislation and the policing of airports. In that regard, I said that it would need consultation between the operator and the police. I know that there have been quite considerable troubles at airports over the level of policing required to be paid for by the airport operator. I may be wrong, but I believe that the airport operator is not always under the impression that those policemen are working full time although he is paying for them. I do not wish to say whether or not that is right.
Our intention is that the police should patrol toll roads no more and no less than they patrol any other highway. As I said in my original reply to the noble Lord, Lord Tordoff, it is a public highway and the powers of the police are exactly the same as they would be on any other road.
However, I shall study with care what the noble Lords, Lord Harris and Lord Tordoff, have said. I shall come back on it.
Lord Harris of Greenwich: I am grateful to the noble Lord. He has not dealt with my question about consultation with the Association of Chief Police Officers.
Lord Brabazon of Tara: I missed that point. I do not know the answer. I shall come back on it.
Lord Harris of Greenwich: We are at an early stage of the Bill. Perhaps the noble Lord will be good enough to write to me and to those of my colleagues who have spoken in the debate to let us know the Government's thinking on these questions. I very much hope that an amendment will be produced by the Government to deal with the matter. I do not believe that the law of contract is the appropriate way to deal with it.
There are a number of complicated and serious issues involving the discretion of chief officers of police in making decisions on the number of officers to be used. I suspect that there would be strong opposition to arbitration on this point.
I do not wish to become involved in a debate with the noble Lord about the policing of airports legislation. It was the first significant piece of legislation that I was responsible for introducing in this House when I was in the Home Office. I would not
126
wish to become involved in a dispute which would get the noble Lord into trouble with the Home Office about the way in which these matters are handled at airports. Perhaps I may put on my old departmental hat. The noble Lord will realise that there are issues involved in the Prevention of Terrorism Act which mean that the level of policing at airports has to be far higher than that for new toll roads.
Lord Tordoff: I am most grateful to everyone who has taken part in this short debate. It has been extremely fruitful. I am glad that the Minister has again reinforced the point that the law will be enforced on new roads as it will be elsewhere. It is important to have that statement on the record.
I am grateful to my noble friend for his expertise on the subject and for his merry jest from the Audit Commission. We do not often have such merriment on a Tuesday afternoon.
I do not believe that the noble Lord. Lord Howie of Troon, should press the point about reversing the situation with regard to the railways. Perhaps he was not too serious about it. He is right to point to the similarity between railways and roads.
The point made by the noble Lord, Lord Clinton-Davis, about public invigilation is very important. It is quite clear from those who have spoken that the Committee consider it an important matter which, if possible, should be on the face of the Bill. Anything less is unlikely to do the job that is required.
If the noble Lord is going to come back on the amendment, perhaps he will also consider the question of fire, ambulance, and any other public services that have to be provided. Similar arguments will apply. I look forward to the noble Lord making progress in that direction. I very much hope that he will put down an amendment at the next stage of the Bill. If he is unable to do so, I hope that he will inform us at an early stage of the reason why.
With thanks to all concerned, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Underhill Lord Underhill moved Amendment No. 8:
Page 2, line 6, at end insert:

("(5) A concession agreement shall—

(a) be laid before Parliament by the Secretary of State; and

(b) be subject to annulment by resolution of either House of Parliament,

and for the purposes aforesaid a concession agreement shall be treated for the purposes of the Statutory Instruments Act 1946 as if it were a statutory instrument.

(6) Where the highway authority which enters into a concession agreement is a local highway authority, the highway authority shall forthwith submit the agreement to the Secretary of State for the purpose of its being laid before Parliament as aforesaid.").

The noble Lord said: The amendment proposes the insertion of two additional subsections to Clause 1. The purpose is to ensure that the concession agreements are subject to parliamentary scrutiny. The key document in relation to any proposed, privately-funded road or bridge under the provisions

127
of the Bill will be the concession agreement. As drafted, the Bill includes little detail as to the likely content of the agreements other than in extremely general terms.
In addition there is no scope for any parliamentary scrutiny of the agreements. Subject to the broad constraints set out in the Bill, the contents of the agreements are left as a matter to be determined between the concessionaire and the highway authority. The issues which the Bill requires to be covered in the concession agreement are important. Obligations in relation to the design, construction, maintenance, operation or improvement of the road, the transfer of land, the payment of compensation to concessionaires and the identification of the highway functions to be exercised by the concessionaire are all extremely significant issues. Many are of direct interest to the public, in particular to those people who may wish to use or to have property near the proposed road. Despite the significance of and a potential interest in the concession agreement, there is no provision in the Bill as drafted for any form of public scrutiny. The amendment ensures the publication of the agreement and provides an opportunity for public scrutiny of it. I draw attention to the additional subsection (6). It provides that where it is the highway authority which enters into a concession agreement, the agreement must be submitted to the Secretary of State so that it can go through the same parliamentary scrutiny machinery that I have already outlined. I beg to move.
Lord Boyd-Carpenter: I hope that my noble friend will not accept the amendment. First, it seems to be thoroughly unsound in principle. Members of the Committee and Members of another place are being asked to accept the principle of toll roads. That issue of principle will be decided as a result of the passage of the Bill.
The amendment would subject every agreement for a toll road, however small, however limited in scope, to the full procedure of parliamentary control of delegated legislation. It would involve the possibility of a Prayer being tabled against every individual agreement. That would be a considerable waste of parliamentary time and would exaggerate the importance of these agreements. Some relating to a large and splendid road may be of considerable interest but many may be of insignificant interest. Yet it is proposed to treat them all the same and to require full parliamentary procedure in relation to them.
Moreover, the noble Lord, Lord Underhill, is wrong in saying that in the absence of the amendment there can be no parliamentary scrutiny of a decision to make such an agreement. Members of the Committee know perfectly well that Ministers in another place or in this Chamber can be asked questions about a particular agreement, and if necessary must make a case to justify it. Surely that is a more sensible way of proceeding than automatically cluttering up the Order Paper and the machine of government with a whole series of essays on delegated legislation. It would be a great mistake to accept the amendment. Not only
128
would it exaggerate the importance of many of the agreements, but it would waste parliamentary time; and it is unsound in principle.
5 p.m.
Lord Howie of Troon: I am not sure about all this. Generally speaking, the type of work would be the subject of private parliamentary Bills and would come under substantial parliamentary scrutiny in Committee and debate in this Chamber.
I must admit immediately that I do not know how the Bill works. I presume that general permission would have been given at an earlier stage before the concession was given. It would seem reasonable that at some date after general parliamentary scrutiny had been made and permission given it would be right to look at a particular proposal in detail. I believe that that is what my noble friend on the Opposition Front Bench wishes to achieve. He wants specific and particular parliamentary scrutiny to be given to specific and particular proposals, and I cannot find that to be out of order. I am strongly inclined to support the amendment with the addendum that I am not sure that I understand the nature of the Bill. However, I am sure that the Minister will put me right.
Lord Brabazon of Tara: I do not know whether the noble Lord, Lord Howie of Troon, has had the opportunity of reading our Second Reading debate. I see that he shakes his head. Perhaps the noble Lord might find time to read the debate because he would then have a clear understanding of the Bill's principles. In principle these parts of the Bill are enabling measures to allow privately-financed roads. However, as I have said in relation to earlier amendments, there will be no difference in the form of public inquiry.
As my noble friend Lord Boyd-Carpenter said, the proposed amendment would secure parliamentary control over every concession agreement entered into by the Secretary of State or a local highway authority. The Government believe that the right way to get infrastructure of this kind approved is, in common with other road schemes, through a form of planning procedure with public inquiries held locally and exploring all relevant matters. It would not be right to superimpose on that procedure a further procedure for parliamentary approval covering the same issues. I should also emphasise that concession agreements are contracts and will, no doubt, contain material that is properly treated as commercially confidential.
The procedure proposed in the amendment is unacceptable to the Government because it would add another layer of uncertainty and delay. Our purpose in this Bill is to have as streamlined a procedure as is possible compatible with the necessary public scrutiny of any road proposal on environmental and other grounds. Many people, and among them I remember the noble Earl, Lord Attlee, speaking on Second Reading, believe that the present procedure for authorising roads in this country causes delays and economic damage out of proportion to the benefits that it brings in terms of public participation. The

129
Government do not agree with that view and are committed to maintaining the present system. But any further delay is not acceptable.
It might be possible to meet the noble Lord, Lord Underhill, part way and to produce a report to Parliament at regular intervals as regards the roads proposed under the new Bill. I shall certainly consider the form that might take with my right honourable friend the Secretary of State. However, I must wholeheartedly reject the amendment as it stands.
Lord Underhill: The noble Lord, Lord Boyd-Carpenter, said that the provision would be a complete waste of time. Moreover, from what he said one might gather that we are thinking in terms of dozens of such concession agreements. I am certain that the department and the Minister do not visualise a vast number and therefore we are not talking about so many coming before Parliament for scrutiny—
Lord Boyd-Carpenter: Surely if the amendment were accepted it would be applicable to any number of such agreements as happened to be made. There is no limit in the amendment and if there happened to be a substantial number of agreements, the provision would bite on them all.
Lord Underhill: I always recognise the fact that it is dangerous to cross swords with the noble Lord, Lord Boyd-Carpenter. He is an excellent debator and raises good points. However, we are concerned mainly with major schemes. The Minister has promised to look into the matter and consider whether a report might be made regularly to Parliament. In doing so, I hope that he will keep in mind the way in which we shall deal with major schemes which come forward. We should not want them to wait for some time until a number of agreements are brought before Parliament simultaneously.
Strangely enough, I turned the page to Clause 8 dealing with the amount of tolls chargeable by concessionaire. All those cases relate not merely to a negative procedure because subsection (6) provides that:
"Regulations under this section shall be made by statutory instrument and shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament".
In all cases relating to the amount of tolls chargeable there must be affirmative procedure. To use the words of the noble Lord, Lord Boyd-Carpenter, that will be a great waste of time; but I hope that he does not now agree. I have noted carefully the Minister's reply. He has agreed to consider placing a report before Parliament, and I ask him to consider in particular major schemes. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Underhill Lord Underhill moved Amendment No. 9:
Page 2, line 6, at end insert:

("(5) Any concession agreement entered into under this section shall be in accordance with—

(a) any current statement of transport policy (including public transport policy) made by a local highway authority or passenger transport authority within whose area the agreement would be operable, or

130

(b) where no such statement is relevant in the case of any such authority, in accordance with any response on transport grounds given by that authority to an application from the person wishing to enter the agreement.

(6) A concession agreement shall include provisions which—

(a) ensure that the design of a special road to be constructed is pursuant to obligations specified in the agreement; and

(b) ensure that the improvement of a special road to be carried out pursuant to such obligations, is compatible with other highways or highway systems specified in the agreement, whether highways or highway systems which are in the locality of the special road or otherwise.").

The noble Lord said: The purpose of this amendment is to ensure that any new roads developed under the provisions of the Bill comply with local transport policies and fit in satisfactorily with the local highway network.
A key issue raised by several noble Lords on Second Reading was the potential conflict between the ability of the private sector to promote road schemes under the provisions of Parts I and II of the Bill, and the growing consensus in support of the need for more effective and balanced transport policies to cope with increasing levels of congestion and the environmental implications of transport policy.
In response to those reservations aired on Second Reading, the Minister attacked the concept of an integrated transport policy. I am sure he will not mind me using the word "attacked", because he attacked the points made by my noble friend. The Minister attempted to reassure the House that individual private sector schemes would be subject to the same assessment and inquiry process as public sector proposals.
The Minister acknowledged that the Bill does not claim to be the total solution to our transport problems, but he did not address the question of how to ensure that road schemes pursued under the provisions of this Bill contribute to rather than conflict with national environmental transport policy.
The approach adopted in the Government's environmental White Paper emphasised the need for strong links between land use and transport planning. Paragraph 5.65 of the White Paper skates:
"In the short term it is not possible to make sudden changes in the layout of towns and cities. But in the longer term the interactions between planning and transport become increasingly important".
The paragraph continues:
"The interactions between planning and transport are complex, and the Departments of Environment and Transport are proposing a joint study … of the relationship between development and travel patterns and ways of locating development to reduce travel distances and to increase transport choice".
Further, paragraph 8.11 of the White Paper comments:
"The Government believes that what is needed is a balanced traffic management policy, taking pressure off unsuitable routes and allowing environmental improvements, together with improvements to traffic flow on the strategic road network and improved public transport with greater priority for buses. It believes that in most cases this does not

131
make economic or environmental sense to increase capacity on roads leading into already congested areas simply to facilitate additional car commuting".
Those are short extracts from the Government's White Paper.
To achieve those objectives, it is essential that adequate protection exists to ensure that any roads developed under the provisions of this Bill comply with local transport policies. The definition of transport policy in paragraph (5) (a) of the amendment is specifically designed to include public transport in order to ensure that the type of balanced approach recommended by the Government in their environmental White Paper is achieved.
The second part of the amendment is designed to ensure that the link between a private road and the existing local road network is specifically addressed in the concession agreement. This amendment, together with the amendment introducing Parliamentary scrutiny should help to ensure that local anxieties in relation to the links with the local road network are resolved. Unfortunately that amendment was not carried, but the Minister is going to look at the principle of it. This is an important matter, taking into account the Government's environmental White Paper. If they do not accept the wording of the amendment, I hope that the Government can accept its principle. I beg to move.
5.15 p.m.
Lord Brabazon of Tara: The first half of this amendment attempts to embody in legal form the remarks made by the noble Lord, Lord Clinton-Davis, on Second Reading on integrated transport policies. In answer to the noble Lord, Lord Underhill, I did not so much attack integrated transport policies but merely said that no one had ever explained to me what was meant by that phrase and that it means different things to different people. The complex and confusing nature of the amendment reinforces my view that the concept of an integrated transport policy is itself hopelessly confused.
The philosophy behind the amendment, in so far as I can discern it, seems to be that ideally all the transport infrastructure and public transport in this country should be planned, if not provided by local authorities, and that for infrastructure or bus services or the rest to be provided by anyone else is very much a second best, accepted grudgingly and only if it conforms to the plans of the local authorities. The Government's approach is the reverse; namely that the market should be allowed to play the fullest possible part in meeting demand, to the benefit of the consumer. Of course, a great deal of public control over what the private sector does is necessary on safety and environmental grounds, and to ensure common standards where necessary on the whole of the country's road network. Moreover, and importantly, recourse to compulsory purchase should be allowed only where it is demonstrably in the interests of the public, and this requires a greater degree of influence
132
by a public authority than where planning permission only is involved. But the veto this amendment would give to local authorities is quite unacceptable.
All these will be taken care of before a concessionaire can begin building a road, some before the signing of the agreement, and some during the authorisation procedure after it. We are determined that concessions will be granted only after competitions, in accordance with the procedures contained in the European directive on public works. Public inquiries and environmental impact assessments will be required for privately financed roads as for all special roads. I am satisfied that no more is necessary. The amendment would confuse and delay; and it would discourage the private sector from using its entrepreneurial and managerial skills for the improvement of the infrastructure of this country—an aim which I think all Members of the Committee share —without the unnecessary confusion and bureaucracy imposed by the amendment, which I cannot advise the Committee to accept.
The sentiments behind the second half of the amendment are not objectionable in principle. It is however very obscurely drafted and unnecessary. We shall of course ensure, and local highway authorities will ensure, that concession agreements insist on high standards and will monitor concessionaires' performance, as is provided for in both the Dartford and the Severn agreements. Moreover, an assumption behind the amendment seems to be that the concession agreement is the only thing necessary to authorise the construction of a privately financed road. I would remind the Committee that each concession agreement will be followed by a scheme, under Section 16 of the Highways Act 1980, just like any other special road. This scheme will be published in draft and will be subject to a public inquiry. No independent inspector would recommend the making of a scheme which did not contain adequate provisions as to the design of the road. All local highway authorities which have the right—and which they would no doubt exercise—to appear at the public inquiry, would press very hard any worries they had about the compatibility of the proposed new or improved road with, and its effect on, the highway network for which they are responsible. Long and sometimes painful experience of the Department of Transport is that independent inspectors take a great deal of notice of such representations, as do the Secretaries of State for the Environment and for Transport when they take their decision on the inspector's report.
I therefore urge the Committee to reject the amendment—the first part because of its total incompatibility with the philosophy behind the Bill, and the second part because it is unnecessary.
Lord Underhill: I am very sorry that the Minister added those last words because I thought that he indicated in his earlier remarks that the second part of the amendment was not unacceptable. Therefore, I thought he might look again at that matter and I was about to thank him for so doing.
This is not the time to debate what is Labour Party policy. In the light of the Minister's comments today

133
and his remarks on Second Reading, at some stage we must have a debate on what is Labour Party policy because there is a 22-page document on the Labour Party's transport policy. It is made clear that we do not intend to have a fixed national transport plan.
If the noble Lord is criticising what is said in this amendment, then he must look very carefully at the Government's White Paper from which I quoted three rather important extracts which were all related to the points made in this amendment.
I shall look carefully at what the Minister has said and I shall consider whether it will be necessary to raise the matter at the next stage. I note also the favourable comments that he made earlier in his speech regarding the second part of the amendment. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 10:
Page 2, line 6, at end insert:
("(5) A concession agreement shall provide that the concessionaire shall permit the driver or rider of any powered vehicle, and may provide that the concessionaire shall permit the rider of any pedal-cycle or any pedestrian, to use, subject to or exempt from the payment of toll, the special road to which it relates.").
The noble Viscount said: In moving Amendment No. 10, I shall speak also to Amendments Nos. 28, 34, 35, 44 and 45. These amendments deal almost exclusively with powered two-wheel vehicles; in other words, motorcycles or mopeds. At the Second Reading of the Bill I spoke on behalf of motorcyclists, of which I am one. There are not that many motorcyclists in your Lordships' Chamber. My representations at that time were received on the whole sympathetically. I expect the same sympathy to be given to these amendments. I apologise that they should have been tabled so late. However, they are not complicated, and I do not intend to pursue them aggressively at this stage.
Amendment No. 10 reflects the fear of the two main bodies which represent motorcyclists in this country that there will not be provision made by the concessionaires—those who operate toll roads—for motorcycles in the way in which those bodies think fit. There is a further fear at this stage which is mainly due to an ignorance of the types of roads about which we are speaking; on some roads there are a large number of motorcycles on a regular basis; on other roads there are relatively few. If those roads on which relatively few motorcycles travel were to become toll roads, and at the end of the toll road there was the necessity to pay a sum which may involve coins, there would necessarily be delays. That could cause aggravation to motorists and other road users, and not least embarrassment to the motorcyclist. I shall come on to that when we consider the last of the amendments, which deals with sheltered provision.
It is the delay which is likely to make the provider of these toll roads feel that he would like to exclude motorcycles altogether. He may take the view that the most practical measure would be to allow motorcycles to go through free of charge. In that event, they would
134
not cause any blockage at the point of payment. However, that is unlikely; indeed, motorcyclists would not expect that favoured treatment. As is dealt with in the amendments to which I speak, the proportionate toll for motorcycles being one-third that charged for a car, generally speaking, is about right. Motorcyclists expect that kind of differential.
Motorcycles are definitely being used more, probably due to the increased congestion on the roads. Yesterday I attended the 1990 motorcycle show at the Birmingham Centre. It is remarkable how many new models across the range are being produced. Manufacturers are expecting more customers for their products. I am happy to say that after a number of years there are some British products being produced. Amendment No. 10 seeks to ensure that the concessionaire provides for motorcyclists and does not seek to exclude them. The amendment also contains a provision, where appropriate, for pedestrians and users of pedal cycles.
Amendment No. 28 deals with the toll order and the maximum tolls therein to be charged. I covered that aspect when dealing with the differential between the various classes of traffic on the roads. The amendment seeks to include that in the Bill.
Amendments Nos. 34 and 38—as is often the case in your Lordships' Chamber—seek to replace the word "may" by the word "shall". In both cases we are dealing with the maximum charges to be made. Any mention in these amendments of maximum charges as they relate to motorcycles does not in any way affect the general principle established in the Bill that concessionaires may set the charges as appropriate, and the ratios are geared in every case to that which is charged for a car.
The final amendment deals with sheltered areas. It is an important point and it would be appreciated if it were provided for in any obligations the concessionaire may have. I do not know whether other Members of the Committee have experienced a difficulty that I had in France. I do not see why a similar situation might not occur here. Certainly in Northern France when motorcycles are leaving a paying area of the autoroute there are often high winds and an extreme chill factor. Motorcyclists are aware of that and it is dealt with by appropriate clothing. Anyone who has had the difficulty of being in high winds with cold hands and attempting to hold a ticket and small change, then facing the embarrassment of the ticket blowing away and a queue building up behind them, will recognise the difficulties facing the motorcyclist. In those cases the provision of some form of shelter—it does not need to be elaborate, but some form of windbreak or shelter against driving rain —would enable the motorcyclist to prepare himself before paying the appropriate charges. That would result in less embarrassment for him and less inconvenience for those who follow.
That is the case for the motorcyclist at this stage. It is not suggested that those who will provide the services, whatever they may be and whatever roads are involved, will seek to exclude motorcyclists. It would be unjust and discriminatory if they were to do so.

135
However, we feel that there is a need for certain matters to be stated and dealt with in the Bill. I beg to move.
Lord Brabazon of Tara: I must admit that I am intrigued by this group of amendments. The enthusiasm of the noble Viscount for all things on two wheels—or indeed three—is well known to the Chamber. His desire to improve the facilities available for their riders is no doubt commendable. Nevertheless, the sort of privately-financed road which the noble Viscount imagines these amendments will produce is a very different beast from any which the Government or the private companies we have consulted have in mind.
Let us examine the first of the group of amendments. Taken at face value, it means that any road provided by a concessionaire must be open to all powered vehicles, from the heaviest lorry, the slowest tractor, to Mr. Sinclair's creation—if anyone still remembers it—and so forth, simply to ensure that motorcycles are not excluded. Under that system it would be impossible to provide a normal motorway, as the Birmingham northern relief road is expected to be, let alone a car-only or lorry-only road, as is sometimes discussed in the context of private finance.
I would have been less puzzled if the noble Viscount had tabled an amendment for a national network of motorcycle-only roads. I am also intrigued by the proposed tariff in the second amendment listing tolls for different vehicles. Perhaps I should call it a shadow tariff since the one unknown in the equation is what the car toll will be, on which all else depends. A bizarre arrangement of this kind is hardly calculated to encourage the promoter of the road to attract custom from riders of vehicles with two or three wheels.
It has been claimed that the damage to the road surface by these vehicles is infinitesimal. But the purpose of tolls is not simply to defray the cost of maintenance. These vehicles already pay lower rates of VED, or, in the case of pedal vehicles, none at all. Moreover, the vehicles still take up almost the same amount of road space as a small saloon car, at least if safe distances are kept by other motorists, as I am sure the noble Viscount agrees should be the case.
The last amendment proposes the provision of under-cover parking at toll plazas or other places where motor cyclists and pedal cyclists must pay tolls or receive documentation. Again, I am slightly puzzled. I can understand the desirability of shelter from the wind and rain; but why parking? Surely there is nothing to stop for except to pay the toll and move on. I take the point that the noble Viscount makes about freezing hands, and so forth.
Before I ask the noble Viscount to withdraw his amendment, I wish to say a few more positive words about what the Government are doing for motor cyclists. Our chief concern is for their safety. Their casualty rate is the highest for any category of vehicle users. To this end we have tightened up the training and testing requirements for motor cyclists. This month we have introduced compulsory basic training
136
for new motor cyclists with the support of the industry and rider groups. Holders of provisional licences issued on or after 1st December will not be permitted to ride on the road until they have completed their training course. Once on the road, learner motor cyclists may no longer carry pillion passengers whose presence significantly alters the handling capacity of the machine, particularly lightweight ones.
Last year we introduced a stiffer on-road test in which the examiner follows the candidate around the test course with radio communication. Spilt diesel on the road is particularly hazardous for motor cyclists. Therefore, we are amending the construction and use regulations to make it a specific offence to fail to maintain a diesel tank in good condition. We take every opportunity to make drivers aware of the needs of all vulnerable road users, including pedestrians and those on two wheels.
I hope that these remarks will satisfy the Committee that the Government have the best interests of motor cyclists at heart. Only when we have achieved an acceptable level of safety can we wholeheartedly encourage the use of these vehicles in the way that the noble Viscount would wish. However, I fail to see how we can place the burden for this encouragement firmly on the shoulders of the private sector, not by offering it inducements but by coercing it with all kinds of regulations and restrictions.
If the Government's private finance policy bears fruit the private sector will make provision for motor cyclists which the market—that is, the user—considers appropriate and is prepared to pay for. There is nothing in the proposed legislation to inhibit concessionaires from providing facilities for motor cyclists and cyclists if there is adequate demand to justify it. Therefore, I do not see that the ideas put forward in these amendments can possibly benefit either the private sector or the motor cyclists and pedal cyclists in whose interests they have been tabled. They will simply reduce the viability of financing what otherwise might be a perfectly good commercial proposition. I hope that with that explanation the noble Viscount will be prepared to withdraw the amendment.
5.30 p.m.
Lord Clinton-Davis: I do not propose to comment at length on the speech made by the noble Viscount in introducing these amendments save to say that I believe he did the Committee a service by raising those questions. It also enabled the Minister, almost by way of parenthesis, to make a useful comment about the steps being taken to reinforce the provisions of the law relating to motor cyclists. The Committee is most grateful to him for that and we shall study carefully what he said in that respect.
Almost by way of parenthesis as well, I want to say something about a group of motor cyclists who seem to cause many of us a great deal of anxiety. I refer to those who carry messages around. I believe they are called couriers. They travel around at inordinately high speeds on highly congested roads. They thread their way between lines of traffic so that they imperil

137
not only their own lives but those of other people as well. A pedestrian crossing the road through a line of congested traffic is taking his or her life in his or her hands when facing that kind of perilous driving.
I am sure that many offences committed in such circumstances are not noticed or they are incapable of being taken further simply because these people drive at such ferocious speeds that it is almost impossible to contemplate taking their index numbers. I am sure the Minister himself must have experienced this kind of driving. The Committee would be reassured to learn that the Government have this issue in mind. It is not strictly germane to the points that have been raised, but the Minister interrupted himself—and why should he not do so since it is his Bill and he is at liberty to interrupt within the bounds of reasonable order?
Lord Brabazon of Tara: We take seriously the issue of bad driving by motor cyclists. In many cases that refers to motor cycle couriers in London and no doubt in other big cities. I needed notice of the question relating to motor cycle couriers. I believe that we have attempted to establish a code of practice by which the reputable companies have agreed to abide. Before I say anything on a subject about which I am not sufficiently knowledgeable, perhaps I should say that I shall write to the noble Lord on the matter.
Lord Tordoff: My noble friend has certainly allowed people to expose their prejudices about motor cyclists on all sides of the argument, but I do not intend to follow down that track. I was interested to hear the Minister say in reply to my noble friend that one of the problems with the amendment is that it would mean that all roads would be open to pedal cyclists, mopeds, and so forth, which would cause difficulties in regard to the possibility of a lorry-only road in the future. This is the first specific reference we have had to the possibility of a lorry-only road. Earlier the Minister said that privately funded roads would be open to all normal motor vehicles. Can he explain the discrepancy?
Lord Brabazon of Tara: I said that there may be lorry-only roads in the future. There will be public highways but it is possible, as in the case of motorways, to restrict certain vehicles from using a motorway. For example, pedal cycles, motor cycles under a certain capacity and various other kinds of vehicles are not allowed on motorways. I referred to the Birmingham northern relief road. If that is to be a motorway it will have restrictions on it.
Lord Tordoff: I understand and accept that point of view. I find the concept of lorry-only roads extremely disturbing at a time when we should be trying to encourage freight to go on to rail and not on to more and bigger lorries. It is that aspect of the matter which is a little frightening and worrying.
The Viscount of Falkland: I thank the Minister for his response, which will be read with interest by myself and by the bodies interested in motor cycling. I cannot understand why he is so puzzled, but perhaps the amendments are not drafted in a clear enough manner. He suggested that he would have been less surprised if I had proposed a road network especially
138
for motor cyclists. It may be that I am already deemed to be eccentric, and if I had said that perhaps I would have been viewed as not worthy of further attention.
I take note of what the Minister said and thank him for his remarks. As regards the under-cover provisions, the cover does not necessarily have to have a roof on it but sides are necessary in order to give protection from the wind and rain. The time spent at the tolls will be fairly short. The reference to parking areas means that there needs to be an area slightly away from where the toll is paid rather than have the cumbersome searching process which I have described taking place in the queue at the point of payment. A shield of some kind would be adequate for that purpose.
I take note of what the noble Lord said about safety. The additional testing and other measures introduced by the Government are wholly admirable and will make an enormous impact on injuries and loss of life, particularly in regard to those setting out to learn to use motorcycles responsibly and carefully on our roads. I thank the noble Lord, Lord Clinton-Davis, for his contribution to a debate which has proved much more interesting than I had foreseen. There is definitely a problem with people who ride for hire and who deliver packages or goods within a time limit. That encourages dangerous behaviour that flaunts the law which other motorcyclists who are not motorcycle messengers generally observe. It would not be fair to paint them black with the same brush. Something must be done. I sense that the noble Lord has it in mind that something will be done.
At this stage all we need is some proper policing. There should be observation by police officers of simple things like motorcyclists proceeding on the wrong side of traffic islands and crossing double white lines. Such things are done almost exclusively by those who ride for hire.
I thank the noble Lord for his remarks. I shall read what he has said with interest and perhaps return with a more specific proposal at a later stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
[Amendment No. 11 not moved.]
Clause 2 [Exercise of highway functions by concessionaire]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 12:
Page 2, line 15, leave out ("functions") and insert ("powers to make regulations or orders, or give directions,").
The noble Lord said: This is a minor amendment to the list of highway authority functions that cannot be transferred under an agreement to a concessionaire. Clause 2(2) as drafted would not allow any functions under the Road Traffic Regulation Act 1984 to be exercised by the concessionaire. The amendment would alter this so as to exclude only powers to make subordinate legislation. As a matter of policy these should remain in the hands of central or local government, although under Clause 3(2) the concessionaire must be consulted before they are used in relation to a concession road. I beg to move.
On Question, amendment agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 13:
Page 2, line 22, at end insert:
("(bb) if it appears to the authority that such exercise is necessary or expedient in the interests of the long term maintenance of the road, or").
The noble Lord said: With this amendment I return to a point which I sought to develop during the Second Reading debate. I can do no better than refer to what I said on that occasion:
"If a concession agreement is to last for 30 years, is there not a likelihood that in the last period of that term—perhaps in the last 10 years—the concessionaire will apply short-term rather than long-term considerations in regard to maintenance? The effect might easily be to leave a substantial backlog of long-term structural maintenance. Does the Minister contemplate that as a reasonable possibility? If so, what do the Government propose to do about it? The implications are very serious indeed. If the agreement is with the Department of Transport, there would be clear implications for the trunk road maintenance programme, quite possibly during a period in which a different government are in office".—[Official Report, 20/11/90; co1.635.]
The Minister did not directly address my point at that stage but he was kind enough to write to me. I thank him. His letter said:
"You suggested that the concessionaire would have little or no interest during the last years of the concession in maintaining the facility. I do not think this is true. Throughout the life of the concession he will have a direct financial interest in keeping the road up to scratch as a poorly maintained road will lose him custom, and a slightly less direct one in preserving a good reputation since that will stand him in good stead in further competitions. Moreover the concession agreement between the highway authority and the promoter will ensure that the responsibility for maintenance will rest with the latter and that he will be under a duty to hand the road back to the highway authority in good condition. This will be monitored by the highway authority who will have access to the road with devices such as the high speed road monitor and who will be able under Clause 2(3) to carry out the necessary remedial work in case of any gross dereliction of duty".
In my submission it is perfectly possible in the short term to maintain a road in what appears, on the surface, to be good condition while neglecting the long-term maintenance needs. An example of that might be resurfacing when the road should be reconstructed. I ask the Minister to reply specifically to that point.
The first part of the amendment is intended to address the very issue to which I have just referred. That is done by adding the interests of long-term maintenance of the road to the factors set out in Clause 2(3), enabling the highway authority to exercise the function transferred by the concession agreement to the concessionaire. If the highway authority had evidence that the concessionaire was neglecting long-term maintenance of the road, the amendment would enable the authority to step in and take any necessary action. It is essential that where the highway authority exercises a function transferred to the concessionaire it should be able to recover the cost of doing so. That is particularly important if highway maintenance functions are added to the list of reserve powers.
The Bill as drafted does not provide for any cost recovery by the authority. Therefore the second part of the amendment would enable the highway authority to recover such costs. In those circumstances I hope the Government will feel that that is an equitable way out of the problem and that they will support the amendment. I beg to move.
Lord Tordoff: I take it that the noble Lord, Lord Clinton-Davis, was speaking also to Amendment Nos. 13 and 14, which have been separated on the groupings list. Although I listened with interest to what the Minister said in his letter to the noble Lord, I feel that one can foresee circumstances in which the concessionaire might easily let the road structure run down towards the end of the concession period. After all, we are talking about quite long concession times, anything up to 50 years. It is likely that in those circumstances reconstruction will be necessary. One needs only to miss out one of those reconstruction periods for the road to be in a much worse condition that it looks. As the noble Lord said, the highway authority ought to be able to recover the costs of setting it right.
Lord Clinton-Davis: Before the Minister rises to reply, perhaps I may say that Amendments Nos. 13 and 14 have been listed together.
Lord Swinfen: Can the Minister tell the Committee what powers of inspection of the road the highway authority will have? Without those powers it will not know whether the road needs to be reconstructed.
Lord Brabazon of Tara: With the leave of the Committee, I shall deal first with Amendment No. 13. I have listened carefully to the points made by the noble Lord but I am not persuaded that there is need for an amendment in this respect. The safeguards contained in Clause 2(3), which I admit are necessary, are sufficient to ensure that the road user will never be at the mercy of an irresponsible concessionaire. The provisions of the concession agreement between the highway authority and the promoter should also ensure that the responsibility for all types of maintenance—both short term and long term—will fall to the concessionaire. Under the agreement, he will be under a duty to pass the facility to the highway authority in good condition at the end of the concession period.
In reply to the issue raised by my noble friend Lord Swinfen, I should point out that the facility will be monitored by the highway authority, which will have access to the road with devices such as the high-speed road monitor, and under Clause 2(3) it will be able to carry out the necessary remedial work in the case of serious neglect.
Quite apart from the pressures of the negotiated agreements between the concessionaire and the highway authority, the risk of losing business during the concession period should guarantee that the concessionaire will keep the facility properly maintained. He will also be keen to preserve a good reputation as that will stand him in good stead in tendering for other work from the highway authority. Subsection (3) (c) would apply to anything covered by

141
the amendment. The highway authority would be entitled to step in if it found that necessary structural maintenance was not being carried out.
I now turn to deal with Amendment No. 14. I entirely agree with the noble Lord, Lord Clinton-Davis, that the concessionaire should pay the full cost of any maintenance work undertaken on the concession road. It is after all in return for maintaining the road, as well as constructing it, that he takes the tolls. We had envisaged a provision along these lines in each concession agreement. It would also act as a deterrent against the concessionaire abandoning his duties if he knew that the cost of the highway authority intervening to rectify the situation would fall to him. But I am persuaded by the noble Lord that a statutory provision along these lines would be useful, if not strictly necessary. The drafting of the amendment will not do as it stands, but I undertake to put one forward on Report.
I hope that with that assurance, and the explanation I have been able to give, the noble Lord will feel able to withdraw the amendment.
Lord Tordoff: I am sure that the noble Lord will be most grateful for that undertaking. I also am grateful as my name is attached to the amendment. However, I wonder whether the Government would consider looking again at Amendment No. 13. It seems to me that the Minister is legislating on the basis of the reasonable and sensible concessionaire. During the passage of the Bills which pass through this Chamber we must take account of people such as the irresponsible concessionaire. It is to those people that the noble Lord, Lord Clinton-Davis, is directing his mind. I believe that the Government are being a little too optimistic in this respect.
Lord Clinton-Davis: I should like to reinforce the remarks just made by the noble Lord, Lord Tordoff. This is an area in which things are not always what they seem to be. Consequently, I believe that the Government should ensure that the utmost caution is applied in this connection and that this issue is covered in the Bill. I merely ask the Minister to think again on the matter. I am, however, most grateful to him for his response as regards Amendment No. 14. We look forward to seeing how this provision will appear in the Bill in its amended form.
The noble Lord, Lord Swinfen, raised the very important issue of inspection. I am most grateful to him for so doing. What he said gives rise to another point to which I hope the Minister will address his mind. I refer to the fact that the highway authorities would be under an obligation to carry out such inspections. But what about the costs involved? Who would be responsible for them?
Lord Brabazon of Tara: I am not certain that I can give the noble Lord an answer to that question at this stage of the proceedings. I suspect that there is somewhere in the Bill a provision which somehow escapes my attention at present. However, I shall return to the matter at a later stage.
In response to the first amendment, I said we believe that there is nothing in the noble Lord's
142
argument that is not covered by Clause 2(3) (c). The situation envisaged by the noble Lord is already amply dealt with by the provisions of the Bill.
Lord Clinton-Davis: I am not totally convinced on that issue. However, we shall reflect on what the Minister said. It is indeed a complicated issue. We may wish to return to the matter at a later stage if we are not satisfied about the position. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Clause 2, as amended, agreed to.
Clause 3 [Provisions as to traffic regulation]:
Lord Swinfen Lord Swinfen moved Amendment No. 15:
Page 3, line 20, at end insert:
("(7) Section 105 of the 1984 Act shall apply in relation to a road subject to a concession.").
The noble Lord said: This amendment is designed to state clearly in legislation that holders of orange badges cannot be clamped on the new toll roads. It is currently illegal under Section 105 of the Road Traffic Regulation Act 1984 to wheel-clamp orange badge holders on the public highway. In my view, that provision must be extended to cover private roads and must be written into the Bill.
I have no objection—neither, I believe, have those who put their names to the amendment—to disabled people paying the same fines as others for unlawful parking. However, if the vehicle of a disabled person is wheel-clamped, he may not even be able to get to the relevant authority to arrange for it to be unclamped. Indeed, he may not be able to reach a telephone.
It is vital that such a provision should be clearly stated in the legislation and that it should be made clear to the wheel-clamping authorities. If such a provision were merely included in regulations, I suspect that it would not be brought to the attention of such authorities. However, if it is a matter of law it will be up to the concessionaires to ensure that the position is clearly understood. I beg to move.
Lord Clinton-Davis: I fully support this amendment. The Opposition feels that the Government need to be very clear on the matter. The issue was raised by many noble Lords during the course of the Second Reading debate. However, it has also been put forward by RADAR, the joint committee on mobility for disabled people, the RNIB and the Spinal Injuries Association. Therefore, it has powerful support outside the House. The points raised so eloquently by the noble Lord relate to matters which need to be addressed.
It appears that there have been some breaches of the law in that some disabled people have been illicitly wheel-clamped. The situation gives rise to acute concern. I wonder whether the Minister has any information about incidents of this nature. If he has, perhaps he will be able to tell us what steps have been taken to deal with the people who carry out such wheel-clamping operations. Further, has he had any discussions with RADAR? I ask that because, following the Second Reading debate, he must be

143
aware that the issue is one which gives rise to great anxiety. If the situation is indeed that which has been presented by these organisations can the Minister say what the Government are proposing to do to ensure that such incidents are not repeated?
We must also address the question of the towing away of disabled people's vehicles. Of course disabled people must not behave irresponsibly by parking their vehicles in hazardous positions. I am sure that the organisations concerned would be the first to recognise that fact. If mistakes occur, disabled people are subject to the most appalling prejudice. If a vehicle is towed away, it is not easy for them to do anything about it, let alone go to the police. This is a matter which the Minister is obliged to address clearly and unequivocally. As I said, I fully support not just the speech made by the noble Lord, Lord Swinfen, but also the amendment.
6 p.m.
Baroness Masham of Ilton: I too support the amendment. We are talking about severely disabled people because orange badge holders should be only those who are severely disabled. I shall give an example of how impractical it would be to wheel clamp the vehicles of severely disabled people. I was driving along the A.1 when my hand controls fell into my lap. I had no brakes. It was a frightening experience. Luckily I was able to move on to the grass between the two carriageways. It took two people —a policeman and a good Samaritan—to carry me across the road into a police car which took me home. My car had to remain where it was. It is a major problem for disabled people when they are left without their cars. I hope the Minister understands that point.
RADAR gives an example of a severely disabled person who was attending for treatment at a physiotherapy clinic. The hospital was on a private road. His car was wheel clamped. Following that, he did not attend his physiotherapy clinic. We are talking about a serious problem, and I hope that the Minister will be understanding.
Lord Brabazon of Tara: I agree entirely with everything that has been said in support of the amendment, but I have to say it is unnecessary. All concession roads will be highways. There will be no difference in the application of the law on wheel clamping or towing away from that on any other highway. Sections 104 to 106 of the Road Traffic Regulation Act 1984 are expressed in such a way that wherever wheel clamping is authorised, the exemptions for orange badge holders and for overstaying meter bays will also apply. Concession roads will be treated for that purpose just like any other road.
At present there are no proposals to allow wheel clamping outside London, nor are there are any proposals for privately financed roads within the presently defined clamping zone. In any event, I can assure the Committee that the safeguards for orange badge holders will continue to apply.
144
The noble Lord, Lord Clinton-Davis, asked whether I had heard of any examples of disabled people's vehicles being wheelclamped on the public highway. I have to say that I have not. If there are examples, no doubt they will be brought to my attention. The noble Baroness, Lady Masham, was of course referring to a private road, presumably on private property. That is not the same as the roads proposed in the Bill. They will be public highways subject to the regulations I have outlined. I can reassure my noble friend that the situation will be as he would want it. I hope that he will be able to withdraw the amendment.
Baroness Masham of Ilton: Perhaps I can ask the Minister a question. Will that provision be written clearly into the regulations? The roads are new and people might look at them differently.
Lord Brabazon of Tara: It must be made clear that the Road Traffic Regulation Act in which the provisions are set out will apply equally to the new roads as to any other public highway. The provisions do not need to be written into regulations.
Lord Clinton-Davis: I thank the Minister for those observations. Those of us who are concerned with the amendment will want to study carefully what he has said to be assured that orange badge holders will be dealt with in the way that he has defined. We should like to hear from the Minister whether, in the light of the observations that have been made by the organisations involved, by the noble Baroness, Lady Masham, and by the noble Lord, Lord Swinfen, his department will undertake to have consultations with RADAR about the practical problems that appear to be occurring.
It is bad enough for the vehicle of a disabled person to be clamped in an ordinary thoroughfare for being on a yellow or a double yellow line. It would be infinitely worse were it to occur on a more major thoroughfare. It would be advantageous were the Minister to indicate to the Committee that he is prepared to enter into discussions with those organisations to discover the extent of the problem that is arising and its gravity, and, if he is minded to agree, to report to this place on those discussions. That would be helpful, especially if it could be done before Report.
Lord Brabazon of Tara: I am not sure what the noble Lord thinks we should be talking about: there are none of these privately financed roads in existence. The situation that he describes does not arise yet. The Department of Transport has a disability unit which is constantly in touch with organisations representing disabled people. I shall ensure that the subject is put on the agenda, but, as I have said, there is no question of there being a problem.
Lord Clinton-Davis: It is a potential problem.
Lord Brabazon of Tara: There is no question of it being a potential problem.
Lord Clinton-Davis: I do not understand that at all. I should have thought the proposition I advanced was

145
a reasonable one. The organisations have expressed concern. It is a matter which the Minister accepts is cause for concern, otherwise—
Lord Brabazon of Tara: No, I do not.
Lord Clinton-Davis: It is a sad state of affairs if the Minister is prepared merely to brush aside representations in a somewhat, with respect, cavalier manner. The organisations representing disabled people have circulated their anxieties to Members on both sides of the Committee. The Minister must be aware of the situation. They would not have gone to that trouble if they had not been alarmed by the fact that disabled people are being treated in an objectionable and illegal way. I am not primarily concerned with the issue of the new roads. We are concerned with a day-to-day problem on which the organisations have expressed strong views.
Regardless of the passage of the Bill, I ask the Minister to undertake to address those concerns. He should obtain more evidence of what gives rise to anxiety and of the number of cases of wheel clamping and then return to the matter. Writing to Members of the Committee is not satisfactory. I am trying to help the Minister, not a hinder him.
Lord Brabazon of Tara: I appreciate what the noble Lord says. When I said that there was no cause for concern, I meant as regards the Bill. The noble Lord mentioned what may be happening at present on ordinary roads; I said that I would look into the matter in the near future. There is no cause for concern over what is in the Bill.
Lord Swinfen: The Government must be preparing guidelines as to the type of matter that will appear in the concession agreements. Will my noble friend undertake to include this matter in the guidelines?
Lord Brabazon of Tara: As I have attempted to explain, it will not be necessary to put this matter into the guidelines because these roads will be subject to the same regulations as are public roads at the moment. Wheel clamping will not be allowed for orange badge holders.
Lord Boyd-Carpenter: I do not know whether my noble friend has quite grasped the point. I accept entirely what he said about the present state of the law, but it appears that, notwithstanding the present state of the law, on existing roads wheel clamping of the cars of disabled people takes place. Surely therefore it would be sensible, when the Minister lays down guidelines for the new types of road, if he were simply to invite the attention of those operating the roads to the present state of the law and the fact that they are not entitled to allow clamping to take place on cars belonging to disabled people. I do not see why he finds difficulty in giving that undertaking.
Lord Brabazon of Tara: I do not believe that there would be any difficulty in giving that undertaking. The concessionaires would have to be aware that they are subject to road traffic regulations not only in this case but in many other matters.
Lord Swinfen: The noble Lord said that there was no difficulty in giving the undertaking that he would
146
bring the matter to the attention of concessionaires in the guidelines but he has not actually given that undertaking. Will he do so?
Lord Tordoff: It is not often that I find myself springing to the defence of the Minister but he has made the position quite clear. On the face of the Bill there is a clear undertaking that the provisions of the Road Traffic Regulation Act 1984 will apply to these roads as they do to other roads.
If the law is being broken by the wheel dampers in other areas, then clearly it is a general problem that does not relate to this Bill. I should have thought that the Minister's undertaking was sufficient to ensure that the disability unit in the Department of Transport—and I have the highest respect for the work it does—will once again have been alerted by the discussions that have taken place in the Committee this afternoon. It will doubtless seek any further instances from RADAR and other organisations which it has not heard about. It will then presumably encourage the police and others to make sure that the law functions.
Lord Brabazon of Tara: I thank the noble Lord, Lord Tordoff, for summing up what I have been attempting to say for some little while. He put it better than I did.
Lord Swinfen: I believe that the Minister has finally understood the danger in which disabled people are placed if their vehicles are clamped. He is young and fit; if necessary he can walk 20 miles to obtain help. A disabled person may be stuck, possibly in bad weather. I shall read with care what has been said and if I think it necessary I shall bring the matter back at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
6.15 p.m.
Clause 4 [Leasing of land to concessionaire]:
Lord Underhill Lord Underhill moved Amendment No.16:
Page 3, line 25, at end insert:
("(1A) Any lease of land granted under subsection (1) shall be for highway related functions only. For this purpose "highway related functions" has the same meaning as in section 2(2) of this Act.").
The noble Lord said: The amendment seeks to limit any lease of land under the Bill from the highway authority to the concessionaire to that required for highway related purposes. A possible use of the Bill would be for the highway authority to lease land for development such as an out of town shopping centre, accessible only by the new road. For the developer, the development and the new road will be seen as a package. The development could cross-subsidise the road and in return become a limited monopoly. Such developments may well be against existing development plans, both for the protection of the existing town centres and also for the protection of green belts, whether formal or otherwise.
Developments in this capacity are not limited to retail centres but may also include housing and leisure facilities. Developers could put pressure on the local highway authority on the basis that, by allowing the

147
development to cross-subsidise the road, the highway authority would get the new road sooner. This may compromise the position of the authority in areas such as London and the metropolitan areas where the highway and the planning authorities are the same. The way in which the planning considerations are dealt with and the weight attached to the individual items within that balance may be affected.
Outside London and the metropolitan areas, the planning authorities and the highway authorities are separate. The former are at district level, the latter at county level. Such development-led pressure could prove to be an intolerable point of conflict between the different tiers of authority and it is not conducive to good government. Furthermore, the process is not good for users.
If a retail development is proposed, as with all out of town centres, there could be increased competition with the town centre, with the resulting closure of retail facilities there. In turn, this would lead to more people being obliged to use the new centre and the new road. Not only would these users have to use the toll road, they would also have to travel further. Both factors mean that they would have to pay more to use the road. In terms, this is against the principles of the Government's own White Paper on the environment, which calls for a reduced need for people to travel. This trend also fuels a vicious circle of declining town centre activities.
It is not the purpose of the amendment to prevent development or even to prevent the kind of development described above in cases where it is sensible. It will, however, ensure that the Bill is not used to support undesirable development either directly or indirectly and it leaves each case to be judged on its merits. If the Minister cannot accept the wording of the amendment, I hope that he will accept the spirit. I beg to move.
Lord Renton: Perhaps the noble Lord can explain one point. His amendment refers to "highway related functions" in inverted commas and suggests that the words should have,
"the same meaning as in section 2(2) of this Act".
In Clause 2(2) we find "highway functions" referred to in inverted commas and then given a meaning. However, there is no reference to "highway related functions". Perhaps this was a slip of the typewriter and the noble Lord meant to say that "the highway related functions" shall have the same meaning as "highway functions" in Clause 2(2). Perhaps the noble Lord can explain that.
Lord Underhill: I readily accept the correction of the noble Lord, Lord Renton, as we always do when he rises on a point of emendation. However, we wish the Minister to agree to the principle; we can always adjust the wording when we come to the Report stage.
Lord Brabazon of Tara: Fortunately, the amendment is unnecessary anyway. The noble Lord will be pleased to know that. Any lease under Clause 4(1) must be related to the concessionaire's functions under the agreement. Clause 1(1) makes it clear that
148
these functions relate to the design, construction, maintenance, operation or improvement of a highway. A highway authority can acquire land only for a highway related function. What it cannot acquire it cannot lease. The powers of a highway authority to acquire land are laid down in Part XII of the Highways Act 1980 and are strictly related to what it needs to acquire in its capacity as a highway authority.
Of course, there is nothing in the Bill to prevent a concessionaire from buying land voluntarily and using it to provide facilities which will make his road more attractive to the user. To do this, he would have to go through the normal planning controls like any other developer. I think that the noble Lord, Lord Underhill, recognises that that would sometimes have its merits and sometimes not. This would be the concessionaire's land and would have nothing to do with a lease from the highway authority. Land acquired by the highway authority could only be used by the concessionaire for a purpose for which the highway authority itself could use it.
I hope that I have convinced your Lordships that the position is watertight and that this amendment would not make it any tighter than it already is.
Lord Underhill: I appreciate part of what the Minister has said but he ignores the reference I made in moving the amendment when I said that there could be pressure on the local authority which considers that this need should be met by cross-subsidising development work with the road. It is perfectly clear under Clause 4(1) that a highway authority may enter into a concession agreement for the lease of land,
"if it appears to the authority to be expedient".
However, the authority may consider it expedient to do so because it wants to get the job done quicker. That is a danger. The point about additional travel that may be required to out-of-town developments and the effect that any out-of-town development might have on a town centre is one that I believe the Minister would not wish to ignore. I shall read carefully what the Minister has said, but we may need to return to this point at a later stage.
Lord Tordoff: It may clarify the situation if the Minister will reinforce a point that he has already made. Are we saying that the highway authority would not be in a position to issue concession land other than for the reasons prescribed in the Bill: in other words, it would not be possible, even under pressure, for a highway authority to give concession land for purposes other than road building, maintenance, improvements or other such matters?
Lord Brabazon of Tara: That is correct. I shall repeat one sentence from my original remarks. A highway authority can acquire land only for a highway related function. What a highway authority cannot acquire, it cannot lease. The powers of the highway authority to acquire land as laid down in the 1980 Act are strictly related to what it needs to acquire in its capacity as a highway authority.
Lord Underhill: I hope the Minister will let me know where the sentence that he read out in his original remarks appears in the Bill. Clause 4(1) states:

149
"A highway authority who have entered into a concession agreement may grant to the concessionaire a lease of any land if it appears to the authority to be expedient to do so for the purpose of or in connection with the exercise by the concessionaire of his functions under the agreement".
However we should consider what agreement may be reached with the concessionaire. We should consider carefully whether an agreement may be reached which conflicts with the point of my amendment.
Lord Tordoff: Is it not the case that under Clause 1 a concession agreement is clearly spelt out? It is the relationship between Clause 1 and Clause 4 that bears on this matter.
Lord Brabazon of Tara: The noble Lord, Lord Tordoff, is correct. I hope that the noble Lord, Lord Underhill, will read what I said originally in reply to his amendment. He will see the relationship between Clause 1 and Clause 4 in that reply. I hope that the matter will be clear to him and that he will agree with me that the position is watertight.
Lord Underhill: I am always ready to do what the Minister says. I shall read carefully what he said. I always read carefully every word that the Minister says, and I shall read his speech with particular care on this occasion. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 agreed to.
Schedule 1 agreed to.
Clause 6 agreed to.
Schedule 2 [Procedure in connection with toll orders]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 17 and 18:
Page 85, line 13, leave out ("it") and insert ("they").
Page 85, line 14, leave out ("its") and insert ("their").
The noble Lord said: These are two technical amendments. Elsewhere in the Bill an authority is referred to as "they" rather than "it". These amendments have been introduced for the sake of consistency. I beg to move Amendments Nos. 17 and 18 en bloc.
On Question, amendments agreed to.
Lord Renton Lord Renton moved Amendment No. 19:
Page 85, line 31, after ("2") insert ("or any person defined as a statutory consultee under the General Development Order of the Town and Country Planning Act 1971").
The noble Lord said: This amendment is of importance and substance because under paragraph 6 to Schedule 2 on page 85 of the Bill we discover when local inquiries can be held. We discover that they can be held,
"If an objection is received by the Secretary of State within the period specified for making objections, and is not withdrawn, then—
(a) if the objection is from a local authority on whom a copy of the notice is required to be served under paragraph 2, the Secretary of State shall cause a local inquiry to be held".
The words of paragraph 6(1) (b) are fairly restrictive. It states:
150
"if the objection is from any other person appearing to the Secretary of State to be affected"
—whatever "affected" may mean—
"he shall cause a local inquiry to be held unless he is satisfied that in the circumstances of the case it is unnecessary".
There is some anxiety on the part of the Council for the Protection of Rural England (which I share) that we need to enlarge the opportunities for the holding of local inquiries. If the Countryside Commission and the three new bodies that are to replace the Nature Conservancy Council, English Heritage or the national park authorities—those bodies may not, strictly speaking, be affected by a proposal —feel that there should be a local inquiry, surely it is only right that the opportunity for an inquiry should be given by the Bill.
Along with my noble friend Lord Norrie, I have tabled Amendment No. 19. That amendment refers to the definition of,
"a statutory consultee under the General Development Order of the Town and Country Planning Act 1971".
It might have been better to have included the words "made under" instead of "of" so that the amendment would read,
"made under the Town and Country Planning Act".
However, that is a small point.
I have the General Development Order with me. Article 18 of that order states under the heading Consultations before the grant of permission:
"Before granting permission for development which, in their opinion, falls within a category set out in the table below, a local planning authority shall consult the authority or person mentioned in relation to that category, except where—
(i) the local planning authority are the authority so mentioned"
or where that local planning authority is in any case required to consult elsewhere. The order sets out the list of consultees. Those are the statutory consultees referred to in the amendment. There are 23 consultees. I shall ease the mind of Members of the Committee by assuring them that I do not propose to refer to them all. However, I wish to draw attention to the sentence in the order which states that where there is development involving or including mining operations the water authority concerned has to be consulted.
The order further states that where there is development relating to the use of land as a cemetery the water authority concerned has to be consulted. In various other cases the water authority has to be consulted. Under the new arrangements in the Water Act, which we approved in a previous Session, there will have to be an amendment to the General Development Order. However, I hope that the principle will be retained. The order further states that in the case of,
"Development in an area of special scientific interest of which notification has been given or has effect as if given to the local planning authority by the Nature Conservancy Council"
under the terms of the Wildlife and Countryside Act, the Nature Conservancy Council must be consulted.

151
I could list in addition the bodies who are given an interest in what is being done by virtue of the provisions of other statutes. We should not overlook that matter when we are providing for the circumstances in which local planning authorities could or should be held under this Bill. I do not want to become too technical over this. I simply suggest most strongly that in paragraph 6 of the second schedule we ought to have the amendment that I propose, or something like it. I obviously would not divide the Committee on this, it is an exploratory amendment, but I hope to get a favourable response from my noble friend. I beg to move.
6.30 p.m.
Lord Norrie: I support this amendment tabled by my noble friend Lord Renton. I believe it provides the means by which countryside concerns can be voiced in public. As I said earlier, I wish to ensure that the highest environmental safeguards are in place so that privately-funded roads do not compromise countryside protection. The ultimate safeguard is through the public inquiry procedure where there is open discussion over the benefits and costs of the proposal.
However, as currently proposed, none of the statutory advisory bodies concerned—and I refer to those listed in the General Development Order under the Town and Country Planning Act mentioned by my noble friend Lord Renton, such as the NCC, the NRA, the National Parks Authority—can be sure that an inquiry will be held even if the proposal seriously affects their interests or undermines national and local protection policies which they have a duty to uphold. This amendment seeks to ensure that the legitimate countryside protection interests are listened to and taken into account in relation to privately-funded roads. By supporting it, we should ensure that the voice of the statutory bodies responsible for the protection of our countryside will be heard.
Lord Clinton-Davis: Characteristically, the noble Lord, Lord Renton, has done the Committee a service by referring to a somewhat loose formulation that appears in the Bill at the present time. It is right that obstacles should not be put in the way, or doubts should not be aroused, so far as statutory consultees in the other legislation are concerned, and I fully support the views that the noble Lord expressed. It is right that in situations of this kind the position should be absolutely clear. I do not believe, particularly having listened to the noble Lord, that it is clear under the Bill at the moment.
What would happen if the Minister were minded to accept the noble Lord's proposition—and I think he himself suggested that it might need some slight amendment, though that is not a matter of major concern for it is the principle we are talking about here —would be to open up the process to a considerable range of bodies which either have or might have a clear interest, such as the environmental conservation organisations which I think have an entitlement here. I shall be interested to hear what the Minister has to say.
Lord Brabazon of Tara: I have listened carefully to the arguments put forward by my noble friend in moving the amendment. I had assumed that he was going to refer to Article 18 of the General Development Order, and I fortunately armed myself with a copy of it. Schedule 2 to this Bill of course deals only with toll orders. Whereas I can quite see that the bodies which my noble friends Lord Renton and Lord Norrie mentioned might well be interested in the development itself, I do not see why any of those bodies should have any special interest and therefore a right to require a public inquiry into a toll order.
Listening to my noble friend's amendment I understood that it was my noble friend's intention to extend to certain public bodies other than local authorities the right to require a public inquiry to be held into the scheme authorising the toll road rather than the toll order itself. The proper way of doing that would be to make an amendment to Schedule 1 to the Highways Act 1980, but, if my noble friend had proposed that, I think I should have been able to resist it on the grounds that it was unnecessary.
In practice, public inquiries are always held into trunk road schemes of any size at all. An objection by a local authority, if only to details of a route, is very often received, and any other objections must be considered by the Secretary of State, and he can only fail to hold an inquiry if he is satisfied that it is unnecessary to do so. That is a stiff test, and it is only where objections are to minor details better dealt with in discussion, or are genuinely frivolous—which no objectors mentioned by my noble friend would be—that an inquiry is dispensed with. I hope I am able to satisfy my noble friend that the bodies that he mentions will of course have their perfectly proper opportunity to raise objections at the public inquiry.
Lord Renton: I am grateful for that answer, but I think my noble friend may have overlooked the fact that, if we are going to have a lot of traffic held up for collection of tolls, that may have environmental effects. For example, obviously more land would be needed for purchase locally, and it may be on the outskirts of what has been a forest. The taking of that extra land, the felling of more trees, would have an environmental effect simply because there was a toll order.
Also, as was mentioned by the noble Lord, Lord Tordoff, in discussion of an earlier amendment, it has been found in the United States that delaying the passage of cars at toll gates in order that their payments can be checked increases the amount of fumes and so on where there are—and of course on the big toll roads there can be a lot of cars—which in itself can have an environmental effect. It may affect the wildlife, for example.
Although I appreciate what my noble friend has said and I am grateful to him for acknowledging that public inquiries are necessary in the way that he mentioned in saying that it would be an amendment to the Highways Act that should be made to achieve our purpose—we shall have to consider that anyway between now and Report stage—I would ask him to bear in mind that the making of toll orders has a direct

153
environmental effect as well. We had that in mind in moving the amendment. Of course we shall need to consider this further, but meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No.20:
Page 86, leave out lines 10 to 18.
The noble Lord said: I beg to move Amendment No. 20, standing in my name. This amendment deletes paragraph 8 of Schedule 2. There is no need for a further provision to make regulations on the procedure for toll road orders. All the provisions one could expect to find are either in Schedule 2 already or could be made in procedural rules for inquiries under the Tribunals and Inquiries Act 1971. I beg to move.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Clause 24 [Toll orders]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 21:
Page 14, line 25, leave out from beginning to ("to") in line 26 and insert ("Part IIA and paragraphs 15 and 18 of Part III of Schedule 1 to the Roads (Scotland) Act 1984 shall apply").
The noble Earl said: This amendment states precisely which parts of Schedule 1 to the Roads (Scotland) Act 1984 will apply to the making or confirmation of a toll order. I beg to move.
Lord Stodart of Leaston: I wonder if my noble friend can shed some light on one thing that puzzles me? It arises from the Roads (Scotland) Act, in whose consideration I remember taking part, because much of the content of that legislation followed from a report on local government that was carried out in Scotland. This is a small point, but I am slightly puzzled by the reference to Part IIA. I have been to the Library to refresh my memory about this matter. There are various parts of the Act. There are Parts I to XIII—my noble friend has said that this part of the Bill refers to the schedule—and there are Parts I to IV of Schedule 1; but in the statute in the Library there is no Part IIA.
The Earl of Strathmore and Kinghorne: There is very little of Schedule 1 to the 1984 Act that we want to attract. All we are trying to do by the amendment is to make the matter clearer, but if my noble friend requires further information perhaps it will be in order for me to write to him.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 22:
Page 14, line 38, at end insert:
("() Where a roads authority enter into a contract with a person for the design or construction of a road which both parties intend will be subject to a toll order, the contract shall make provision for the compensation of that person for such expenses as may be agreed in accordance with the contract in the event of—

(a) the roads authority deciding not to proceed with the special road scheme, or

(b) the Secretary of State failing to make or confirm either the toll order or the scheme.").

The noble Earl said: This amendment reproduces for Scotland the effect achieved for England and Wales by Clause 1(4). I beg to move.
Lord Carmichael of Kelvingrove: I am glad that these amendments have been put down because they make the Bill more understandable, but there are still problems about the responsibility For design and construction. I remember that half-way through the work on an important Scottish road the design was discovered to be faulty. Will the Minister explain what would happen in such a case? Would it be the decision of the roads authority not to continue, because to redesign would be too expensive, or would the contractor be the person who changed the design?
The Earl of Strathmore and Kinghorne: Perhaps I should try to explain a little more fully. The amendment deals with the issue or compensation where a roads authority enters into a contract with a developer who undertakes to design and construct a road in return for an assignation of the authority's power to charge and collect tolls.
If the roads authority decides not to proceed with the scheme or if the Secretary of State fails to make or confirm the toll order or the scheme the authority shall compensate the developer in respect of the costs incurred by him as may be agreed. This has always been the Government's intention, as was stated in their response to consultation on New Roads by New Means. The amendment will bring the provision into line with the provision for England and Wales in Clause 1(4).
While it would have been possible simply to make provision for this in any agreement between the roads authority and the developer, the amendment will ensure that the agreement makes such provision in every case. The responsibility for the design would lie with the developer and he would have to bear any financial penalty for an unworkable or inappropriate design. I hope that that answers the noble Lord's point.
On Question, amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Assignation of rights under a toll order]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 23:
Page 15, line 2, leave out from ("person") to ("rights") in line 4 and insert ("for such period and subject to such terms and conditions as they think fit, their").
The noble Earl said: This is a minor drafting amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 24:
Page 15, line 16, leave out from ("of') to end of line 17 and insert:

("(a) charging for the occupation of the road,

(b) charging for any services in relation to the road other than services which they themselves have supplied, or

(c) any contribution made by a third party towards the cost of maintenance or improvement of the road,

except to the extent that they themselves have incurred expense in such cases.").
The noble Earl said: This is a drafting amendment which makes clear that any income received from charges for occupation or for services in relation to the road, and any contribution made by a third party, shall be assigned to a concessionaire. This latter provision could refer, for example, to compensation for long-term damage caused by excavation carried out by undertakers, a scheme for which is provided by Clause 125, in Part IV. The amendment also restricts the requirement to assign the income to exempt cases where the special road authority has provided the service or has itself incurred costs. I beg to move.
On Question, amendment agreed to.
6.45 p.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 25:
Page 15, line 18, leave out ("roads") and insert ("road").
The noble Earl said: This amendment corrects a minor terminological error. I beg to move.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 26:
Page 15, line 20, at end insert ("in such cases as the authority has discretion as to the amount to be charged").
The noble Earl said: Clause 25(6) as drafted would require the special road authority in all cases to consult the concessionaire before making a charge as mentioned in subsection (5). This amendment provides that the special road authority need not consult the concessionaire in cases where the charge is prescribed. I beg to move.
On Question, amendment agreed to.
Clause 25, as amended, agreed to.
Clause 7 [The toll period]:
Lord Underhill Lord Underhill moved Amendment No. 27:
Page 5, line 1, leave out ("may") and insert ("shall").
The noble Lord said: This appears to be a very small amendment but it is nevertheless important because Clause 7 relates to the toll period. The amendment seeks to make the provision of a termination point for the toll period a mandatory feature of the toll order.
As currently drafted, this clause allows an open-ended power for tolls to be charged on a road. This power extends well after any costs and profit margins have been recovered from the road, and indeed well after the road has reverted to the ownership of the local highway authority. It surely cannot be the Government's intention to allow this to happen; nor is it a good sign of policy that a measure such as tolling a road can be undertaken without any clear understanding as to the purpose of introducing the toll.
The sort of purpose that is legitimate covers a fairly wide range. For example, it could cover the cost of construction and maintenance of the road, metering flows on to other parts of the road system and general traffic management. The parties entering into the concession agreement should have a clear idea of the
156
purpose. They should therefore be able to define a point at which the tolls may be removed. At present the Bill is permissive in this respect, though it gives a very wide range of possible ways of defining a point at which the tolls should end.
It is also possible to vary a toll order if, in the course of events, the original deadline becomes unrealistic. These measures should therefore become mandatory. That is the purpose of the amendment and I hope that the Minister will appreciate that changing "may" to "shall" is important because it will set the period at which the tolls should end, which should be mandatory. I beg to move.
Lord Brabazon of Tara: Again, this amendment is unnecessary and I shall seek to convince the noble Lord, Lord Underhill, of that. Subsection (1) makes it quite clear that a toll order must be finite, with its termination date either laid down in or determinable under the order. Subsection (2) allows an order to contain a formula relating the termination date to factors of which a financial objective and a number of vehicles are two possibilities. "May" has been thought by the draftsmen to be more suitable than "shall", when a wide range of alternatives is offered. It is totally subordinate to "shall" in subsection (1). I see no merit in changing the drafting here.
It is an important principle that all toll road orders and all concession agreements should have an end. We are not prepared to grant tolling rights in perpetuity, but the length of the period and the means by which a right is calculated will vary. Often it will simply be a number of years. However, in some cases it may be appropriate to use other measures, such as the date on which a certain amount of revenue has been accumulated or a specified number of vehicles have used the road. The Dartford and Severn agreements both use those formulae, designed in these monopoly cases to allow an opportunity for a reasonable return on capital but not excessive profits. It is in such monopoly cases that a formula is most likely to be appropriate. I hope that explanation will allow the noble Lord to withdraw the amendment.
Lord Underhill: What the Minister said appears reasonable but bears no relation to subsection (1). That states:
"A toll order shall provide for tolls to be chargeable for a period (the 'toll period') specified in or determined in accordance with the order".
Subsection (2) states:
"The order may provide for the toll period to end"
and gives one, two or three alternatives. There is no reason whatever why "shall" should not be substituted since it still leaves the alternatives "or … or … or". We must have a mandatory toll period. That is all that is sought by this amendment.
I shall read carefully what the Minister said. However, he may find that the substitution of "shall" or "may" has to be agreed upon.
Lord Brabazon of Tara: Let me repeat what I said. The point is that subsection (2) is subordinate to subsection (1), which definitely states that the toll period shall be finite.
Lord Underhill: As I said, I shall carefully read what has been said. I am not totally convinced by the Minister's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
[Amendment No. 28 not moved.]
Clause 26 [The toll period]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 29:
Page 15, line 34, leave out ("roads") and insert ("special road").
The noble Earl said: This is a minor drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Clause 8 [Amount of tolls chargeable by concessionaire]:
Lord Tordoff Lord Tordoff moved Amendment No. 30:
Page 5, line 14, leave out from ("charged") to end of line 16.
The noble Lord said: In moving Amendment No. 30, I should like to speak also to Amendment No. 31.
The Deputy Chairman of Committees (Lord Nugent of Guildford): I am sorry to interrupt the noble Lord. Amendment No. 31 pre-empts Amendments Nos. 32 and 33. No doubt the noble Lord is aware of that.
Lord Tordoff: I am indeed aware of it. We deliberately tabled the amendments in this way because we hope to succeed in the first two amendments, failing which we shall deal with the matter in a different way with the next series of amendments.
The idea behind Amendment No. 30 is to set a maximum for all toll roads. I do not for one minute expect that such a measure will be viewed favourably by the Government. The amendment takes us into two areas that we have discussed before, one of them today, in that it ties in with the European view that tolls should have some relationship to the total cost.
Also, and to my mind slightly more important, is the fact that it takes us back to the question of near-monopoly situations, to which I referred during the Second Reading of the Bill. The provisions of Clause 8 are very restrictive in that they refer only to major crossings which are in fact major estuarial crossings. One understands why that has been done. If no maximum is set, a monopoly situation could occur whereby the concessionaire for an estuarial crossing could rip off the public because there is no alternative route by which the public can travel. I shall come back to the question of definition when we deal with Amendments Nos. 32 and 33, if we do not succeed with Amendment No. 31. However, that is not the only situation in which a monopoly or near-monopoly situation could occur.
One can envisage the possibility of a demand unfulfilled by the present road network in a fairly remote part of the country where there is no possibility of a sensible alternative. One thinks of parts of Scotland and parts of the South West. It may be that
158
we are taking a sledgehammer to crack a nut. However, in tabling this amendment, I wanted to explore this area. I am not satisfied that the Government, in restricting the provision to major estuarial crossings—they do not in fact say estuarial crossings and use the definition "water more than 100 metres wide", but I think that it largely refers to estuaries—have covered the only occasion on which a monopoly or near-monopoly could be created. For cases in which there could be such a possibility, it is certainly my belief that a maximum toll should be imposed. With that in mind, I beg to move the amendment.
Lord Brabazon of Tara: These two amendments have been tabled with the same purpose in mind. The effect of these two changes would be to make all tolls subject to a maximum, regardless of the circumstances in which they were charged. Clause 8 was intended to protect consumers from excessive tolls in monopoly situations such as estuarial crossings. That was pointed out by the noble Lord, Lord Tordoff.
We believe that that is justified since road users would have no redress against excessive tolls by travelling on an alternative route. But there is nothing to be gained and much to be lost by extending regulation to all tolls. On roads other than the crossings regulated under Clause 8, the competitive pressures of alternative routes will adequately protect the road user. The aim of this initiative is to bring market forces to bear on roads provision. Furthermore these amendments will unnecessarily restrict the operation of privately financed toll roads and will discourage potential promoters, who will rightly wish to be assured of a return on their investment. Price control has been shown to be harmful, and removed in other sectors; we do not propose to introduce it here.
As in other sectors, the best way to protect the consumer is to ensure that the market works properly. That is why Clause 10 extends to toll roads the operation of the laws relating to fair trading, anti-competitive practices and restrictive agreements. Any apparent abuse of market power is open to examination by the Office of Fair Trading and may be referred to the Monopolies and Mergers Commission, whose powers, as the Committee may be aware, are far-reaching.
I am afraid therefore that I cannot agree with the principle of the noble Lord's amendments and I must ask the Committee to reject them.
Lord Clinton-Davis: I should like to probe the Minister's intentions a little further. The noble Lord, Lord Tordoff, touched on certain points which the Minister did not address. In any event, the Minister's argument may be flawed concerning the principle. Be that as it may, let us deal with the practicalities. We shall join issue on that.
What would be the situation if substantial roadworks were being carried out? Would that be met by the situation dealt with in the final passage of subsection (4)? A monopoly situation could arise with reasonable suddenness in a variety of circumstances.

159
One is the situation that I postulated in which one has major roadworks. Or there may be some substantial accident that occurs which prohibits the use of another alternative road, thus making the toll road the only possible route that can be taken. A variety of possibilities could arise with some degree of suddenness. How will the Minister respond? It will presumably take considerable time to impose different terms. It is a procedural matter that I should like the Minister to explain.
7 p.m.
Lord Brabazon of Tara: I am not sure whether the noble Lord was referring to road works on the toll road or the alternative road. I assume that he meant the alternative road.
The operator of the toll road will not be allowed to take sudden advantage by putting up his prices when he realises that he is on to a good thing because the other road is temporarily restricted. That would be a subject for the Office of Fair Trading. I believe that that issue will be amply covered.
Lord Clinton-Davis: With respect, one cannot go to the Office of Fair Trading to deal with a variety of possibilities which have disabled the alternative route, converting the toll road into a monopoly position. One has to be practical.
Lord Tordoff: Will the Minister address himself to what I call a near-monopoly situation? I understand his philosophical position. I am not responsible for it. I understand that logically he does not wish to see maximum tolls placed on such roads. We may have to return to that at a later stage to empower the Secretary of State in certain circumstances other than those on the face of the Bill to impose maximum tolls when he thinks fit. As the Bill stands he is unable to place a maximum toll on any road other than the major crossings as defined in the clause.
Does the Minister accept that there may be other circumstances outside the narrow confines of the clause when it would be proper to define a monopoly or near-monopoly situation and the application of maximum tolls?
Lord Brabazon of Tara: I am not sure that I can go much further than I have already done. Of course difficult situations may arise that one cannot foresee. That is why we have made provision for the estuarial crossings in Clause 8. We have made provision for the Office of Fair Trading and the Monopolies and Mergers Commission writs to run in such matters.
I can tell the noble Lord, Lord Clinton-Davis, that regulations under Clause 13 will require proceedings to be followed before toll charges can be changed. On the road works point, that would prevent the concessionaire from raising the charges suddenly. In answer to the noble Lord, Lord Tordoff, obviously I cannot foresee every situation which may arise. However, other than on estuarial crossings, we are talking about an alternative road other than one which already exists. At present a road exists although it may not be as good as the toll road is proposed to be.
Lord Clinton-Davis: I thank the noble Lord for his response about the possibility of regulations dealing with road works. However, sudden eventualities could arise. There could be subsidence or flooding on the alternative road. It may be some event which lasts a relatively short period—a day or so. It provides a monopoly position for the privately financed road. What is to stop the operator taking advantage of that emergency?
I do not understand how the Minister proposes to deal with the situation by going to the Office of Fair Trading? There simply would not be time. Would the position be dealt with by regulations? Perhaps it would. We should like to know the answer from the Minister before we return at Report stage.
Lord Boyd-Carpenter: I hope that my noble friend will stand firm on the amendment. If it were accepted it would make the operating of a toll road very much less attractive to the operator by introducing a considerable element of uncertainty with regard to the charges that he was able to impose. The examples that have been quoted seem to relate to wholly temporary situations. It does not seem likely that when the alternative road was flooded the operator would have the time to put a new system of charges into operation on the toll road. There does not seem any real risk.
However, the firm point of great importance is that one will diminish the attractiveness of building a toll road if one accepts that there may be a general facility for imposing a limit on the charges. It is a very important amendment. It is important that it should be resisted.
Lord Brabazon of Tara: I agree very much with my noble friend. That is the point that I have been trying to get across. Of course we wish to see such roads built. The concessionaire will wish to make a profit out of them. That is why he will build the road. However, as I said to the noble Lord, Lord Tordoff, except in the case of estuarial crossings, competition will be available from existing roads. The concessionaire will not wish to overcharge and frighten away customers. He will wish to attract them. He will therefore have to charge a reasonable toll.
I said to the noble Lord, Lord Clinton-Davis—perhaps he did not take my point—that regulations under Clause 13 require a procedure to be followed before toll charges can be changed. That prevents sudden changes in the case of some unforeseen circumstance on the alternative road.
Lord Tordoff: I am grateful to the Minister. I should like the noble Lord, Lord Boyd-Carpenter, to understand that I am not talking about temporary circumstances but situations where there is either no proper alternative or an unacceptable or much more difficult alternative route. There is no provision for that situation in the Bill.
Under the Bill the Secretary of State is unable to set maximum tolls on anything other than estuarial crossings. There is no provision in the Bill for a similar or near-monopoly situation. I accept that my amendment does not cover that specific case. I must consider it before the next stage. However, I am sorry

161
that the Minister has been unable to take the matter on board and to suggest that the department is willing to consider some way of dealing with what I consider a genuine problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Lord Tordoff Lord Tordoff moved Amendment No. 32:
Page 5, line 24, leave out ("five") and insert ("ten").
The noble Lord said: Clause 8(3) sets out the definition of a major crossing and refers to the distances involved. The Bill defines a major crossing as 100 metres wide, where there is no other route within five miles of the crossing in question. Subsection (3) (b) states:
"the distance between two crossings shall be taken to be the shortest distance between the centre lines of the two crossings".
The distance between the centres of the two bridges is irrelevant to the inconvenience or otherwise of the driver of a vehicle. He wants to know whether there is an alternative crossing within a reasonably driveable distance. If the crossings are five miles apart but, due to the topography, he must drive 30 miles to reach the other end of the bridge, we are faced with a monopoly situation. Presumably the Government will wish to avoid that.
I tabled the two amendments in order to define the distance by road. I propose changing the word "five" to "ten" in line 24 and inserting the words "measured as the distance to be travelled by means of motor vehicle to reach it from the approach to the relevant end of that crossing". I accept that perhaps subsection (3) (b) should also be deleted for the sake of tidiness, but that can be dealt with at a later stage.
I hope that the Government will understand that their narrow definition of what constitutes an alternative means of crossing needs to be widened in such a way that it is relevant to the driver and not to someone sailing a boat down the river. I beg to move.
Lord Brabazon of Tara: I applaud the noble Lord, Lord Tordoff, for trying to get to grips with the difficult question of how to define a monopoly where there are two crossings of navigable waters which may or may not be alternatives to each other. I must admit that, when all is said and done, the definition we arrive at will be somewhat arbitrary. However, we should nevertheless aim to come up with one which is simple but effective. Unfortunately, I believe that the ingenious suggestion put forward in this amendment is neither of these. As regards simplicity, I would ask: when would the Secretary of State's surveyor, in his motor vehicle, be sure that he has actually reached the alternative crossing and should turn off his milometer? Nor is the point on the approach road from where he started specified. An approach road can be as long or as short as a piece of string. I fear that if we accepted this amendment there would be endless arguments over such questions at public inquiries, which would detract from the central issues.
As regards effectiveness, this definition could well change over time if, for example, the layout of the
162
roads between two crossings changed a few years after the new crossing had been built. And who would decide from the outset which route between the two ends of the crossings would form the basis for measurement?
We already have a firm basis for measuring the distance between two crossings in Clause 8(3)(b). I do not pretend that it is the last word and we have included in Clause 8(2) the opportunity to change it. But the present definition is a clear and unequivocal foundation. I submit that it is a surer way of moving forward on this question and therefore I ask the Committee to reject the amendment.
Lord Tordoff: The special pleading in relation to the poor surveyor being unable to ascertain the distance by road between two points is stretching the argument a bit far. It is probably easier to try to do so by road than through space between the centre lines of the two bridges. Presumably with the use of a decent Ordnance Survey map one can get very close.
I am not satisfied with the answer because it is unrealistic in relation to the way people use roads. They do not use them by taking straight lines between two points. Their alternatives involve going by road. I hope that the Minister will look again at the matter. Perhaps I have phrased the amendment badly, not having the advantage of parliamentary draftsmen. As I have sought to show, the provision is so restrictive that I believe the Government should take a little more notice of the real problems that motorists may face. However, at this time of night I shall not press the matter and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment Nos. 33 and 34 not moved.]
Clause 8 agreed to.
7.15 p.m.
Clause 9 [Amount of tolls chargeable by highway authority]:
[Amendment No. 35 not moved.]
Clause 9 agreed to.
Clause 27 [Amount of tolls chargeable]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 36:
Page 15, line 37, leave out ("its") and insert ("their").
The noble Earl said: I speak also to Amendment No. 37. These are technical amendments. I beg to move.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 37:
Page 16, line 2, leave out ("its") and insert ("their").
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 38:
Page 16, line 6, leave out from ("but") to end of line 8 and insert ("no such assignation is made, they shall not charge any tolls in respect of that road unless the Secretary of State—

(a) consents to such charging, and

(b) specifies maximum tolls which may be charged by the authority.").

The noble Earl said: This is a minor drafting improvement which makes the provision more rigorous in its logic. I beg to move.
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clause 28 [Toll order in respect of major crossings]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 39:
Page 16, line 34, leave out ("25") and insert ("25(1)").
The noble Earl said: This is a minor technical amendment. Elsewhere in the Bill assignations are described as being granted under Clause 25(1). I beg to move.
On Question, amendment agreed to.
Clause 28, as amended, agreed to.
Clause 10 agreed to.
Clause 29 [Application of enactments relating to monopolies, &c.]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 40:
Page 17, line 13, leave out from ("reference)") to end of line 17.
The noble Earl said: The amendment deletes paragraph (b) of Clause 29(2). The paragraph is not necessary for Scotland. The Secretary of State for Scotland is among those Ministers listed in Section 51(3) of the Fair Trading Act 1973. I beg to move.
On Question, amendment agreed to.
Clause 29, as amended, agreed to.
Clause 11 agreed to.
Clause 30 agreed to.
Clause 31 [Transfer or termination of assignation]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 41:
Page 18, line 4, at end insert ("and references in this Part (including this section) to an assignation granted under section 25(1) include references to a fresh assignation granted under paragraph (a) above.").
The noble Earl said: The amendment provides that the provisions of this part in connection with assignations apply to the first assignation and also to any subsequent assignation which is granted. I beg to move.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 42:
Page 18, line 5, leave out ("Such an assignation") and insert ("An assignation granted under section 25(1)").
The noble Earl said: This amendment follows on from the amendment to Clause 31(2) and is needed to make it clear that the assignation referred to is the first assignation and any subsequent assignation. I beg to move.
On Question, amendment agreed to.
Clause 31, as amended, agreed to.
Clause 12 [Further provisions as to charging of tolls]:
Lord Swinfen Lord Swinfen moved Amendment No. 43:
164
Page 7, line 9, after ("order") insert ("shall contain provision exempting from liability for tolls any vehicle lawfully displaying a badge issued to a disabled person under section 21 of the Chronically Sick and Disabled Persons Act 1970, and").
The noble Lord said: If the Committee accepts this amendment, it would exempt from tolls vehicles lawfully displaying the orange disabled badge. Among the environmental reasons for privately-financed roads was the encouragement to the motorist to use public transport. The Committee will know that in many instances severely physically disabled people are unable to use public transport. Virtually the only public transport specifically designed for them is the long distance train. For most of them, the car is their only means of transport and certainly the only practical means of transport. For them to have to pay a toll, would, in effect, be a tax on their disability.
At present, orange badge holders are already exempt from paying tolls on the Severn Bridge, the Erskine Bridge, the Forth Bridge, the Dartford Tunnel and I understand many other lengths of toll roads in the country. I should add that disabled people generally have lower incomes and higher costs of living than able-bodied people. I beg to move.
Lord Clinton-Davis: I rise to support the amendment moved by the noble Lord, Lord Swinfen. I do so on the grounds that it is consistent with current practice in relation to the examples which he cited for disabled people displaying orange badges to be excused from tolls in the four instances to which he referred.
Therefore, it would be consistent with that and it would be extremely inconsistent if another practice were to be applied in relation to the new policy to be deployed by the Government in encouraging private finance into those road systems.
The second reason, as the noble Lord said, is that there seems to be strong evidence that disabled people are by and large—and there are exceptions to this—within the lower income group. That is not something which I cite from out of my own head: Government surveys have disclosed that information. We know that the level of mobility allowance has not kept up with the cost of motoring. That is another very strong reason for undertaking the policy advocated by the noble Lord.
I hope that the Government will not resist the amendment. If they are not in a position to accept it today, I hope that the Minister will leave the door ajar so that we can come back to this matter on Report, and I hope that the Government response either today or then will be very positive.
Baroness Masham of Ilton: I too support this amendment. For one moment I should like to go back in history and ask the Government a question. We have heard that disabled people who hold orange badges are exempt from payment on toll bridges such as the Forth and Severn Bridges and others. What was the reason for that? Why was that exemption made and by whom? There must have been a very good reason and perhaps that reason stands for the future toll roads.
Lord Brabazon of Tara: I recognise the sincerity and feeling with which this amendment was moved. I also recognise that a similar provision is included in the Severn Bridges Bill, which is now before another place. I believe that the amendment is founded in part upon a misconception. The purpose of the orange badge scheme is basically to help people with permanent and severe disability problems to park so that they can go about their daily lives more easily. The purpose of tolling privately financed infrastructure is not to deter road users, and encourage them to switch to another mode, but to remunerate the concessionaire, who will have financed and built the road, and who will shoulder the cost of operating and maintaining it—a matter which Members of the Committee opposite were particularly keen on when we discussed early amendments. I do not see why concessionaires should be statutorily barred from recouping some of their investment from particular classes of road users, just because they have a disability. The Committee and my noble friend will be aware that there are about 1·25 million orange badge holders so a statutory exemption would have a significant effect on the viability of a project, and on the general level of tolls to be charged.
Members of the Committee will know that the exemption in the Severn Bridges Bill is unusual if not unique. The Dartford-Thurrock Crossing Act exempts from tolls those vehicles which are exempt from vehicle excise duty, and there is a similar practice elsewhere; for example, in the Tyne tunnels. I do not have with me the details of the other crossings which my noble friend mentioned. Also, I should say to the noble Baroness, Lady Masham, that I do not know why exemptions were made as regards the Severn Bridge in the first place.
Baroness Masham of Ilton: Perhaps the Minister will find out from the archives and let me know because I am interested. It may be that society was rather more caring in those days than it is now.
Lord Brabazon of Tara: I am not sure I can comment on the latter remark. I was about to say that I would try to find out and write to the noble Baroness. I do not wish to become involved in a debate about the resources made available for the disabled at this juncture.
There may be circumstances in which such an exemption would be appropriate, and there may be others where a reduced toll, short of exemption, would be appropriate. Clause 12(1) in the Bill expressly envisages a toll order containing provisions exempting classes of traffic, which could be the emergency services, or could be vehicles used by disabled people. The clause also makes it clear that even when exemptions are not required by a toll order the concessionaire may grant such exemptions as he thinks fit. This would enable him to let orange badge holders use the road free, or, perhaps more likely, at a reduced toll, which, as with British Rail's concessionary fares, might gain business as well as good will.
I am convinced however that it would not be right to require as a matter of law exemptions to be granted
166
to orange badge holders, and I must therefore ask the Committee to reject this amendment, eloquently moved though it was.
However, without commitment, I am prepared to consider whether it may be possible to have a statutory exemption on the lines or the Dartford exemption where tolls are required and where there is not a convenient alternative for the road user. I appreciate that I have not gone so fits as my noble friend would like, but I hope that he will accept that assurance which I have been able to give and will withdraw the amendment.
7.30 p.m.
Lord Clinton-Davis: I simply do not understand why the Minister cannot go further. He referred to the viability of the project being endangered. Is that a serious argument? What is the incidence of disabled orange badge holders who are likely to use these tolls? It must be very small indeed. There is no question of endangering the viability of a project like this. Indeed, one might think that concessionaires will think it appropriate to make such exemptions.
Leaving that aside—it is not something on which we can rely—surely the case that has been made out is consistent with the case of the Erskine Bridge and the Forth Bridge. I am not sure what the position is vis-é-vis the Severn Bridge but I thought that orange badge holders were currently exempt. There seems to be some kind of mystery surrounding the Dartford Tunnel, and I do not follow that. The fact is that exemption is not unusual.
The noble Baroness asked a perfectly reasonable question to which the Committee will require an answer—if not tonight, later—as to how it came about that exemptions were granted in relation to a number of such instances. Whatever may be the history, interesting though I am sure it is, in terms of practicability a strong case has been made out for saying that there should be exemption. Why bother with partial exemption? We are not discussing huge sums of money. We are speaking of something to which the Government could say they are committed, whether in the form of regulation or writing it into the Bill. That is what we shall demand from the Government at a later stage of the Bill. We shall certainly reflect on what the Minister said and no doubt he will also wish to come back and give us answers to questions that he cannot reasonably provide tonight.
Another matter of concern relates to the unlawful display of the orange badge. I can see no good reason why that should not be made a criminal offence. That would help the Minister rather than impede him in what he seeks to do and would make very clear that only legitimate orange badge holders should display them. Others doing so would be flouting the criminal law. That is precisely what should happen. Penalties should be imposed for any such unlawful display.
I understand that my honourable friend in another place, Mr. Jack Ashley, raised this question with the previous Secretary of State. The reply that he received was that in principle the Government accepted the

167
proposition but were disinclined to use this specific legislation to advance the idea. I should have thought that this was a perfectly good piece of legislation and the right vehicle to use. Ministers often use the argument that a particular piece of legislation is the wrong vehicle. Anyone who has been a Minister has experience of using the wrong vehicle argument. I believe one could not have a more appropriate piece of legislation in which to introduce that sanction. I hope that the Government will be prepared to do that.
If in principle the Government are prepared to go along that route but are not prepared to use this Bill, there are other Bills coming along in the course of the Session. There are five transport Bills in all. Perhaps the Minister could say what would be the appropriate Bill. I hope he will be somewhat more forthcoming than he has been hitherto, both in relation to the wider point raised by the noble Lord, Lord Swinfen, and on the point regarding criminal sanctions to which I alluded a moment ago.
Baroness Masham of Ilton: Before the Minister answers perhaps I may say that I took some legislation through this Chamber. I am fairly sure that it is a criminal offence to abuse the orange badge, certainly when parking. Severely disabled people are disappointed because the policing of the offence is practically non-existent. The Minister will find that very few fines have been imposed. That causes great disappointment. Able-bodied people have abused and still abuse the system.
Lord Clinton-Davis: I thank the noble Baroness for the intervention. However, I believe that legislation is confined to parking and does not have the broader implications to which I referred.
Lord Brabazon of Tara: We are straying somewhat from the contents of the Bill. However much the noble Lord, Lord Clinton-Davis, may think so, I do not consider this to be a suitable opportunity to introduce overall criminalisation of misuse of orange badges. The Bill refers to new roads, and to street works in the second part. It certainly could not be used to operate on any road, which presumably would be the effect of such legislation.
We debated this subject about 18 months ago. I will need to refresh my memory on that. We recognise that there is a problem and there are already penalties, as the noble Baroness said, for unlawful display of orange badges. That is something we take seriously. However, it is not something we could incorporate into the Bill.
Lord Swinfen: I thank all those who have taken part in this short debate. Perhaps I may ask the Minister whether he will be kind enough to write not only to the noble Baroness, Lady Masham, but also to the other sponsors of the amendment with an answer to the question regarding the origin of the relief on tolls for orange badge holders. When considering this matter we should also bear in mind that a civilised society can only be called a civilised society when it looks after its weakest members. In that respect, relieving disabled
168
people of the need to pay tolls when they use what is often their only means of transport would be a case in point. The matter should be looked at again.
With regard to the illegal use of an orange badge, that may well be covered in legislation that the noble Baroness piloted through the Chamber some time ago. However, it would not be impractical to make it a criminal offence to obtain a reduction in a toll by the improper use of an orange badge. That provision could be incorporated into the Bill. The matter needs to be considered further.
I shall read what has been said in the debate this evening. I shall consider it with my advisers and I may well come back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 12 agreed to.
Clause 32 agreed to.
Clause 13 [Collection of tolls]:
[Amendment No. 45 not moved.]
Clause 13 agreed to.
Clause 33 agreed to.
Clause 14 agreed to.
Clause 34 agreed to.
Clause 15 [Facilities for collection of tolls]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 46:
Page 8, line 39, leave out subsection (2).
The noble Lord said: I beg to move Amendment No. 46, tabled in my name and that of my noble friend Lord Underhill and the noble Lord, Lord Tordoff. The purpose of the amendment is to remove the exemption of toll collection facilities from the need for planning permission.
Clause 15(2) exempts the construction of toll collection facilities from the need for planning permission under the Town and Country Planning Act 1990. We feel that that is undesirable. The effect of the amendment is simply to delete the subsection in question to ensure that planning permission would be required in regard to facilities of this kind.
We believe that toll collection facilities could easily be located in environmentally sensitive areas. Therefore one is concerned to discover what kind of justification there can be for exempting them from planning control. The Minister may say that his concern is to boost the commercial attractiveness of the provision for privately funded roads. He said that in the last debate, somewhat incongruously I should have thought.
I shall try to anticipate one or two of the other arguments and deal with them although the Minister may have others up his sleeve. He may argue that planning permission is unnecessary because the design and location of toll collection facilities would be examined at any public inquiry held in relation to the road proposal as a whole. I bet that the Minister uses that argument. He might well say that Clause 15(1) provides for the consent of the highway authority to

169
be given for the setting up of any such facilities. I bet that he uses that argument also. If he does, I suggest that the arguments are not sustainable.
The reason is that technological advances will be made. It is almost certain that the kinds of facilities that are most appropriate for efficient and effective toll collection will alter during the life of the toll order and concession agreement. It is as important that any new facilities are subject to the same degree of scrutiny as the initial proposals.
The highway authority is unlikely to be the planning authority particularly if it is likely that the highway authority for the majority of the privately funded roads is the Secretary of State for Transport. The provision in relation to consent by the highway authority is aimed at ensuring that any road safety implications of the location of facilities are addressed rather than aesthetic or environmental ones. It is important that we should incorporate the latter provision in the Bill.
The Automobile Association is also concerned about this matter. In a briefing to Members of the Committee it has said that it considers it to be anomalous to exempt a private developer from planning control given the general principle that private parties must seek planning permission. Therefore, not only does the AA support the proposition that I have advanced; so does the Council for the Protection of Rural England and the Association of Municipal Authorities. I beg to move.
Lord Swinfen: I support the amendment moved by the noble Lord, Lord Clinton-Davis, and every word that he said. I cannot understand why this subsection is in the Bill. Without the need for planning consent we could have in areas of outstanding natural beauty, or areas close to them, the most hideous and inappropriate structures put up for the purpose of collecting tolls. The noble Lord said that it may be all right at the very beginning, but methods of collecting tolls may well change. Concessions will be for 50 years or possibly more. We must have proper planning controls.
Lord Brabazon of Tara: I have listened carefully to the arguments raised on this amendment. The reasoning behind the subsection is by no means as sinister as the noble Lord makes out. It is simply that, having gone through a complicated and exhaustive procedure to authorise a road scheme and the power to toll, it seems superfluous to expect the concessionaire to engage in a quite separate procedure to obtain planning permission for toll booths and their essential facilities such as rest rooms for toll collectors.
Traffic signs are exempted from planning permission under the general development order and toll booths are no less an essential part of the road on which they are placed. However, I am aware of the importance of the planning process. I understand also the concern about the breadth of the expression:
"facilities for the collection of tolls".
It may be that we have not yet got the right balance. I shall look into the matter further. I shall read carefully what the noble Lord has said and, with my
170
right honourable friend the Secretary of State for the Environment, I shall table an appropriate amendment at Report stage if we come up with a better solution. But obviously I cannot make any commitment. I hope that I can persuade the noble Lord to withdraw the amendment.
Lord Tordoff: I hope that the Minister does what he says he will do. This is not a question similar to road signs. Toll booths can be very extensive structures. On the French motorways there are all kinds of overhead gantries and other structures. Planning consent will simply make sure that the booths are put in the most acceptable place. Some flexibility is possible. It is very important that they are not allowed to obtrude on a particularly beautiful piece of countryside even if a road has just been put through it. A different dimension is involved. Whereas roads, on the whole, are two dimensional, toll booths will be three dimensional. I hope the Minister can find some way of coming back to the matter at Report stage; otherwise I look forward to the issue being raised again from this side of the Chamber.
Lord Clinton-Davis: I thank the noble Lord for his response. I seem to be making a little more progress as the night draws on. However, I wish to assure him right away that that is no encouragement for prolonging the debates. I hope that we shall finish in about 20 minutes. I am grateful to the Minister for what he said. He has committed himself to looking at the observations we have made tonight. I do not think we can reasonably ask him to go any further now. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Clause 35 agreed to.
Clause 16 agreed to.
Clauses 36 and 37 agreed to.
Clause 17 agreed to.
7.45 p.m.
Clause 39 [Classification of traffic for purposes of special roads]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 47:
Page 21, line 28, after ("where"") insert ("to the end").
The noble Lord said: This amendment is in the name of my noble friend Lord Strathclyde. It is a purely technical amendment. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 48:
Page 21, line 38, leave out subsection (2).
The noble Lord said: This amendment stands in the name of my noble friend Lord Strathclyde. The provision is being removed from this clause but it will be provided in an amendment to Part III of Schedule 8 which will involve amending the statutory instrument section of the Roads (Scotland) Act 1984. However, it is essential to the later amendment that this one is made here. I beg to move.
On Question, amendment agreed to.
Clause 39, as amended, agreed to.
Clause 18 [Certain special roads not necessarily trunk roads]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 49:
Page 10, leave out lines 8 and 9 and insert:
("(2) In the case of a special road provided by the Minister, subsection (1) above has effect subject to any provision of the order directing that the Minister shall continue to be the highway authority for the road.").
The noble Lord said: This amendment also corrects a small drafting error. I beg to move.
On Question, amendment agreed to.
Clause 18, as amended, agreed to.
Clause 40 agreed to.
Clause 19 agreed to.
Clauses 20 and 21 agreed to.
Clause 38 agreed to.
Clauses 22 and 23 agreed to.
Clause 41 [The Roads (Scotland) Act 1984 and the interpretation of Part II]]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 50:
Page 22, line 18, at end insert:
(" "toll period" has the meaning given in section 26(1).").
The noble Lord said: This amendment stands in the name of my noble friend Lord Strathclyde. It is a minor drafting point. I beg to move.
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Import and Export Control Bill
7.50 p.m.
The Minister of State, Department of Trade and Industry (Lord Hesketh): My Lords, I beg to move that the Bill be now read a second time.
This Bill repeals Section 9(3) of the Import, Export and Customs Powers (Defence) Act 1939. That subsection provides that the Act will expire on,
"such date as His Majesty may by Order in Council declare to be the date that the emergency that was the occasion of the passing of this Act came to an end".
By repealing this subsection, the 1939 Act is made permanent.
The Import, Export and Customs Powers (Defence) Act 1939 is the last major piece of the emergency legislation introduced at the beginning of the second world war to remain in use. It gives powers to the Secretary of State for Trade and Industry to make orders regulating or prohibiting the import or export of goods to or from the United Kingdom and enabling licences to import or export goods to be granted. It also provides for the forfeiture of goods imported or exported contrary to an order.
172
The power to control imports and exports is essential to implement many important government policies. The export control powers have been used for many years to restrict trade for strategic reasons. In the light of recent developments we may be able to envisage a time when the use of these powers is no longer necessary, but for the present the continuing need is only too obvious. Other examples of the use of the powers are to implement international treaty obligations such as the Nuclear Non-Proliferation Treaty, and to help prevent countries from developing chemical and biological weapons; to prevent certain exports which could prejudice national security; and to prevent the export of goods likely to be used for terrorist purposes or internal repression. The powers of the Act are also used to prevent exports of antiques and other items which are considered to be an important part of the national heritage and to implement the voluntary restraint agreement on steel exports.
The powers to control imports are just as important to support foreign policy objectives and to help safeguard public security—for example, by regulating the import of firearms—although they are used mainly to enforce internationally agreed trade protection measures. Controls which have become unnecessary can be removed easily. For example, in the light of developments in Eastern Europe, COCOM partners announced in July a major relaxation in controls which has been implemented under the powers of the 1939 Act. I hope that further relaxations in export controls will follow.
Experience has shown that the powers work efficiently and effectively without placing unnecessary burdens on business. They are well tried and tested. The 1939 Act gives us the powers to react quickly and flexibly in response to new situations as they arise. It is important to realise that this Bill is a technical measure. The exercise of powers under the Act is not affected. However, it is now unsatisfactory to control imports and exports under powers derived from an Act which will expire when an Order in Council is made declaring that the emergency that was the occasion of the Act's passing is at an end. We should therefore make the Act permanent now.
To sum up, in practice this Bill changes nothing. The powers conferred by the Act have been operating well for many years, and it is important that they should continue to do so in the future. This Bill, by making the 1939 Act permanent, ensures that they will. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Hesketh.)
7.54 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the Minister for introducing the Bill. We agree that it is a technical Bill and we have no difficulty with it. However, I should like to make one or two comments.
I understand that it is the last major piece of the emergency legislation introduced at the beginning of the second world war now remaining in use. There is

173
today no emergency of the nature envisaged in 1939 but there are other emergencies which His Majesty or Her Majesty, as may be, might declare in the context of the section which the Government seek to repeal. I understand that the powers of the Act have been used to prevent exports of all kinds of things other than strategic materials. For instance, articles of an artistic nature, antiques and so on come under the provisions of the Act. I wonder whether it would not be sensible to try to draft a Bill somewhat more up to date than the 1939 Act. I leave that point with the Minister.
It appears—I say no more than that—that the Government do not have the powers which we would wish them to have to control exports to Iraq. That has come to light against the background of the Gulf crisis. What other pieces of legislation remaining in the legislative cupboard need to be looked at and redrafted in an up-to-date form? It should not require a new crisis for us to take what I would regard as slightly spatchcock measures to improve our legislation.
Having said that, the Opposition support the Government in their intention to control exports in a proper manner. We support the Second Reading.
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 44 (No two stages of a Bill to be taken on one day) having been dispensed with (pursuant to Resolution of this day), Bill read a third time, and passed.

Ministerial and other Salaries Order 1990
7.56 p.m.
Lord Hesketh Lord Hesketh rose to move, That the draft order laid before the House on 13th November be approved [2nd Report from the Joint Committee].
The noble Lord said: My Lords, as your Lordships may know, under the terms of the Resolution of another place of 21st July 1987, parliamentary salaries will increase by 8.5 per cent. on 1st January 1991 in line with Civil Service rates for Grade 6s. Our intention is that Ministers and paid office holders both in this House and in the Commons will also receive an increase of 8.5 per cent. in their official salary from the same date.
The draft order which I laid before your Lordships' House on 13th November determines the revised salaries we propose for Ministers and paid office
174
holders. In a Written Answer given to the House on 13th November my noble friend the Lord Privy Seal set out in detail all the changes which we envisage. Ministers and paid office holders would receive cash increases varying from £1,359 to £3,974, depending on their office, in addition to the increase of £1,708 in the reduced parliamentary salary for Commons Ministers. The Lords Ministers' increases will range from £2,548 to £3,790. The total increase in ministerial and paid office holders' salaries would amount to just under £265,000, which is equivalent to 8.5 per cent. of the pay bill.
I believe that these proposals represent an equitable and realistic settlement which would be entirely consistent with this Government's policy towards pay restraint. For the past three years Ministers have received relatively modest settlements. This cannot be sustained for too many years without eroding differentials between Members of another place and Ministers. There is no question of catching up for previous low settlements. I commend this Motion to the House.
Moved, That the draft order laid before the House on 13th November be approved [2nd Report from the Joint Committee]. —(Lord Hesketh.)
Lord Graham of Edmonton: My Lords, we on this side of the House welcome the order because it continues the understandings which I believe were reached after a period of some dissatisfaction when ministerial salaries and those of Members of Parliament were constantly the subject of public comment because they always seemed to be brought forward at the wrong time; and sometimes, it was said, for the wrong reasons.
The Government, with the approval of all parties, have devised a formula which takes the manner in which these matters are dealt with out of the public domain and away from such controversy. The Minister's opening remarks were very reasonable and well understood. As I said, we on this side of the House welcome the order.
Lord Rochester: My Lords, Members on these Benches have no special points to make on the matter. Therefore, we are happy to accept the order.
On Question, Motion agreed to.
House adjourned at one minute before eight o'clock.